PHR SHRM module (TWO)pdf111.pdf

PHR SHRM Module 'Two'

Module Two Workforce Planning

and Employment y

®r

The SHRM Learning System'

Module 2 Checklist

Section

2-1: Key Legislation Affecting Employee Rights

Start Date

Completion Date

2-2: Key Legislation Affecting Privacy and Consumer Protection

2-3: Equal Employment Opportunity/Affirmative Action

2-4: Gender Discrimination and Harassment in the Workplace

2-5: Organizational Staffing Requirements

2-6 Job Analysis and Documentation

2-7 Recruitment

2-8 Flexible Staffing

2-9 Selection and Retention

2-10: Organizational Exit

2-11: Employee Records Management

Score for Module Review Test One*

Score for Module Review Test Two*

* Look for these tests on the Web at www.learnhrm.com.

http://www.learnhrm.com

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By using these SHRM Learning System student materials (the "Materials"), the user ("User") hereby agrees as follows:

(i) That the Society For Human Resource Management is the exclusive copyright owner of the Materials.

(ii) Provided that the required fee for use of the Materials by User has been paid to SHRM or its agent, User has the right, by this License, to use the Materials solely for his/her own educational use.

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SOCIETY FOR HUMAN RESOURCE MANAGEMENT

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WORKFORCE PLANNING AND EMPLOYMENT

Contents " i

In t roduct ion 2-1

Sect ion 2-1: Key Legislat ion Af fect ing Employee Rights 2-2

Employee Rights Legislation 2-4

Sect ion 2-2: Key Legis lat ion Af fect ing Privacy and Consumer Protect ion 2-44

Privacy Legislation 2-46

Consumer Protection Legislation 2-48

Sect ion 2-3: Equal Employment Opportuni ty /Af f i rmat ive Ac t ion 2-56

The Concept of Equal Employment Opportunity 2-58

Precedent-Setting Discrimination Cases 2-60

EEO Reporting Requirements 2-64

Affirmative Action Plans 2-69

Fairness Issues 2-81

Employment Practices Liability Insurance 2-87

Sect ion 2-4: Gender Discr iminat ion and Harassment in the Workp lace 2-92

Workplace Harassment and Discrimination 2-94

The Background of Sexual Harassment Legislation 2-94

Employer Responses to Harassment 2-99

Sexual Orientation Guidelines 2-100

Sect ion 2-5: Organizat ional Staff ing Requirements 2-104

Internal Workforce Planning 2-106

Supply Analysis Techniques 2-107

Demand Analysis Techniques 2-114

International Workforce Planning 2-118

Sect ion 2-6: Job Analys is and Documentat ion 2-126

Job Analysis and Job Description Methods 2-128

Job Analysis 2-128

Essential Job Functions 2-132

Job Descriptions 2-135


WORKFORCE PLANNING AND EMPLOYMENT

Job Specifications 2-139

Guidelines for Writing Job Descriptions and Specifications 2-140

Job Competencies 2-140

Sect ion 2-7: Recrui tment 2-146

Recruitment Objectives and Selection Criteria 2-148

Recruitment Methods and Sources 2-148

Employment Branding 2-162

Recruitment Effectiveness 2-164

International Recruiting 2-167

Sect ion 2-8: Flexible Staff ing 2-174

Flexible Staffing Alternatives 2-176

HR's Role in Flexible Staffing 2-179

Sect ion 2-9: Select ion and Retention 2-184

The Selection Process 2-186

Step 1: Analyzing Application Forms 2-187

Step 2: Interviewing 2-190

Step 3: Testing and Background Investigation 2-198

Step 4: Contingent Job Offer 2-212

Step 5: Employment Offer 2-214

Retention 2-219

Sect ion 2-10: Organizat ional Exit 2-226

Downsizing 2-228

Exit Interviews 2-237

Outplacement 2-239

Employer Defenses Against Litigation 2-240

Sect ion 2-11: Employee Records Management 2-244

Records Management 2-246

Legal Compliance 2-253

Bib l iography 2-256

Glossary 2-261

Index 2-271


SHRM acknowledges the contributions of its volunteer leaders and staff members who have served as subject matter experts for the 2011 Learning System. Module subject matter experts

Wendy Bliss, J.D., SPHR Principal, Bliss & Associates Colorado Springs, Colorado

Deborah Keary, SPHR Human Resources Director,

Society for Human Resource Management

Alexandria, Virginia

Jennifer Loftus, SPHR-CA, GPHR, CCP, CBP, GRP

National Director, Astron Solutions New York, New York

Lynn C. Outwater, J.D., SPHR Managing Partner, Jackson Lewis LLP Pittsburgh, Pennsylvania

Gayle Porter, PhD, SPHR, GPHR. Professor of Management Rutgers, The State University School of Business Camden, New Jersey

Nancy Volpe, SPHR, GPHR Chief People Officer Center for People Solutions LLC Grandville, Michigan

For past contributions Cornelia Gamlem, SPHR President, GEMS Group Ltd. Herndon, Virginia

Gary Kushner, SPHR, CBP President and CEO, Kushner

and Company Portage, Michigan

Michael Losey, SPHR, CAE President and CEO, Society for

Human Resource Management (retired)

President, MikeLosey.com Fleming Island, Florida

Dr. Fraya Wagner-Marsh, SPHR, GPHR

Department Head, Department of Management, Eastern Michigan University

Ypsilanti, Michigan

For test question contributions: Brenda Jimenez, SPHR Senior Consultant—

Diversity Verizon Communications Basking Ridge, New Jersey

Gena Jones, DM, SPHR Assistant Vice President for Human

Resources Texas Tech University Health

Sciences Center Lubbock, Texas

Randy McCamey, PhD, SPHR Associate Professor of Management

and Human Resources Tarleton State University Stephenville, Texas

For legal compliance: Jonathan A. Segal Partner, Duane Morris LLP Philadelphia, Pennsylvania

Linda B. Hollinshead Partner, Duane Morris LLP Philadelphia, Pennsylvania


WORKFORCE PLANNING AND EMPLOYMENT Section 2-1

Introduction

As delineated by the HR Certification Institute, workforce planning and

employment involves the processes of developing, implementing, and

evaluating sourcing, recruitment, hiring, orientation, succession planning,

retention, and organizational exit programs necessary to ensure that the

workforce will meet the organization's goals and objectives.

Staffing your organization with qualified employees who have the key skills and

vision your organization needs is a primary concern of human resource

management. To be viable, workforce planning and employment strategies must

be assimilated into the organization's strategic objectives. In so doing, HR

professionals must consider both short-term and long-term needs of the

organization so that staffing requirements can be anticipated in a timely manner.

This self-study module examines several important aspects of workforce planning

and employment, including key legislation affecting employee rights, employee

privacy, and consumer protection as well as equal employment opportunity,

affirmative action programs, discrimination issues, recruitment, flexible staffing,

selection, organizational exit, and employee records management.

While the module includes legal content, it should not be construed as legal

advice or as pertaining to specific factual situations. No general statement of law,

no matter how seemingly simple, can be applied to any particular factual situation

without a full, careful, and confidential analysis of all relevant facts, the

employer's policies and practices, and the applicable federal, state, and local laws

of the jurisdiction(s) in which the employer operates.

Progress checks are included at the end of each section in the module to help you

monitor your learning. These will be more useful if you check your written

responses against the recommended answers and the content of the section.

The content in this, module accounts for 26% of the PHR exam (59 questions) m

and 17% of the SPHR exam (38 questions).

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2-1

Workforce Planning

and Employment

2.1

HR responsibilities related to this section include:

• Ensure that workforce planning and employment activities are compliant with applicable federal, state, and local laws and regulations.

• Implement and/or administer the process for non-U.S. citizens to legally, work in the United States.

This section is designed to increase your knowledge of:

• Federal/state/local employment-related laws and regulations related to workforce planning and employment.

Organizational documentation requirements to meet federal and state requirements.


Employee Rights Legislation A plethora of federal laws and regulations designed to end discrimination and uphold

employee rights has been enacted during the past four decades. Understanding and

complying with employment law helps organizations and managers do the right

thing and minimizes potential organizational and individual liability.

Key antidiscrimination laws and agency guidelines include:

• Title VII of the Civil Rights Act.

• Civil Rights Act of 1991.

• Age Discrimination in Employment Act.

• Pregnancy Discrimination Act.

• Americans with Disabilities Act and ADA Amendments Act.

• Genetic Information Nondiscrimination Act.

• Lilly Ledbetter Fair Pay Act.

• Uniform Guidelines on Employee Selection Procedures.

Laws affecting both affirmative action and antidiscrimination include:

• Executive Order 11246.

• Vietnam Era Veterans Readjustment Assistance Act and Jobs for Veterans Act.

• Rehabilitation Act.

• Executive Order 13496

Other key legislation includes:

• Immigration Reform and Control Act.

• Worker Adjustment and Retraining Notification Act.

• Congressional Accountability Act.

• Uniformed Services Employment and Reemployment Rights Act.

In addition to the federal legislation covered in this module, you should educate

yourself about state/local requirements that may be applicable to your environment.

. A note to "test takers: The certification examination does not test state-specific

laws or regulations. Dates of laws and court cases are also generally not

tested. However, given the tendency for one law or court decision to influence

additional legislation or future cases, it is desirable to recognize the general

timing and sequence of key legislation and court cases.

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Title VIS of the Civil Rights Act (1964) The cornerstone of federal antidiscrimination legislation is the Civil Rights Act

of 1964. This landmark piece of U.S. legislation was the nation's first

comprehensive federal law making it illegal to discriminate in employment on

the basis of race, color, religion, sex, or national origin. Title VII of the act was

passed to bring about equality in hiring, transfers, promotions, compensation,

access to training, and other employment-related decisions.

General provisions General provisions of Title VII include the following.

• Prohibits discrimination or segregation in all terms and conditions of

employment based on race, color, national origin, religion, and gender.

Several state and local laws have expanded these protected classes to

include, for example, sexual orientation, marital status, or status in regard to

public assistance. Title VII does not protect people based on these

characteristics or based on individuals' genetic predisposition to health

conditions. Nor does Title VII require "all employees . . . to have equal

working conditions."

• Makes it unlawful to limit, segregate, or classify employees in any way that

would deprive them of employment opportunities or otherwise adversely

affect their career progressions based on their race, color, national origin,

religion, or gender. It protects all employees, for example, from being

denied promotions based on their status as members of a protected class.

• As amended by the Pregnancy Discrimination Act of 1978, makes it illegal

to discriminate because of pregnancy, childbirth, or related conditions.

• Provides equal opportunity to participate in training programs, giving all

employees equal opportunity for advancement.

• Prohibits sexual harassment and harassment based on the other protected

categories. In order to avoid illegal harassment and protect against legal

liability, employers should develop a policy prohibiting sexual and illegal

forms of harassment, including an internal complaint procedure, and

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disseminate it to all employees. (This topic is discussed more fully in

Section 2-4 in this module, "Gender Discrimination and Harassment in the

Workplace.")

• Prohibits discrimination in compensation practices. Best employer defenses

include basing these practices on seniority, merit, performance, or systems

that measure the quality and/or quantity of work.

As amended by the Equal Employment Opportunity Act of 1972, which

expanded its coverage, Title VII applies to most employers in the United States.

Any organization meeting one of the criteria listed below is subject to the rules

and regulations of the Equal Employment Opportunity Commission (EEOC),

the specific government agency set up to administer the act:

• Most private employers who have 15 or more persons on the payroll for

each working day of 20 or more weeks in the current or preceding year

• All educational institutions, public and private

• Federal, state, and local governments

• Public and private employment agencies when functioning as employers and

when referring individuals for employment

• Labor unions with 15 or more members

• Joint (labor-management) committees for apprenticeships and training

Exceptions Several exceptions exist regarding the definition of discrimination.

• Work-related requirements

An employer may be able to defend a practice that has a disparate impact on

a class of people but is job-related and required by business necessity. For

example, firefighters must be able to lift a certain amount of weight over

their shoulders, and fewer women may be able to pass this requirement.

• Bona fide occupational qualification (BFOQ)

If gender, religion, or national origin is a bona fide occupational

qualification (BFOQ) reasonably necessary to carrying out a particular job

function in the normal operations of the business or enterprise, the factors



may be used in employment practices. For example, being female can be a

BFOQ for a women's bathing suit model.

• Seniority systems

Seniority systems that were not designed to discriminate are lawful under

Title VII.

Civil Rights Act (1991)

According to the Civil Rights Act of 1991, jury trials are allowed in cases

where the plaintiff seeks compensatory or punitive damages.;

This act provides for but limits the damage awards available to victims of

intentional discrimination in violation of Title VII, the Americans with

Disabilities Act, and Section 501 of the Rehabilitation Act of 1973 (which

applies to federal government employees only).

Compensatory damages under the act are awarded to make an injured person

"whole"; they include compensation for damaged property, lost wages or

profits, pain, bereavement, medical expenses, etc., and financial payment for a

person's out-of-pocket losses and future expenses due to injury, disability,

disfigurement, pain, and suffering, and all actual losses, whether economic or

noneconomic.

The Supreme Court case Kolstad v. American Dental Association (1999)

addressed the issue of punitive damages authorized by the Civil Rights Act of

1991. The Court held that the availability of punitive damages depends on the

motive of the discriminator rather than the nature of the conduct.

The Court rejected the American Dental Association's claim that an employee

must prove that a discriminatory act was "egregious or outrageous." To recover

punitive damages, an employee must prove that the employer acted with malice

or reckless indifference to his or her rights. While there is no independent

requirement that the employer's conduct be egregious or outrageous, the

egregiousness or outrageousness of the conduct may serve as evidence of the

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employer's mental state, which is the focus for determining the availability of

punitive damages.

The Court did create a safe harbor from punitive damages by recognizing that

an employer may not be liable for the discriminatory employment decisions of

managerial agents where these decisions are contrary to the employer's good-

faith efforts to comply with Title VII.

Punitive damages are not possible against a governmental unit or agency under

federal law. However, they may be available under state law.

The maximum amount of both compensatory and punitive damages available

under the Civil Rights Act of 1991 is limited according to the size of the

employer's workforce, as follows:

Maximum Recovery per Individual* Number of Employees

Age Discrimination in Employment Act (1967) The Age Discrimination in Employment Act (ADEA) of 1967 prohibits

discrimination in employment against persons age 40 and over. It forbids

limiting or classifying employees in any way that adversely affects their status

because of age (such as discontinuing pension accruals after age 65).

Amendments to the ADEA passed in 1978 and 1986 first raised and then

eliminated mandatory retirement ages, except in certain limited circumstances.

Exceptions There are exceptions to the ADEA's prohibition against age discrimination. Age

discrimination is permissible under ADEA if age is a bona fide occupational

qualification for reasons that are reasonably necessary to the normal operation

of the enterprise.

$50,000

$100,000 $200,000

$300,000 501 or more

. .15-100

101-200 201-500

For both compensatory and punitive damages

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For example, an employer can hire a young person to model teenage clothing in

a magazine advertisement. Or, in the case of public safety officers, such as

firefighters and police, the act permits upper age limits in hiring and mandatory

retirement at any age specified by state or local law if such requirements meet

the ADEA's standards for a bona fide occupational qualification.

Other exceptions to ADEA's nondiscrimination requirements may occur

under the following circumstances:

• The employer is adhering to a genuine seniority or benefit plan ;

• The employer is disciplining or firing a person for good cause.

• The employee is a top executive or policy maker; (High-level managers

and certain bona fide executives or high poli,cy makers can be required to

retire at age 65 if they are entitled to receive company-sponsored

retirement benefits of at least $44,000 per year and have held their

position for two years prior to retirement.)

The top executive exception to the prohibition on mandatory retirement does

not apply in some states. If the exception does not apply in a particular state,

then the federal exception is irrelevant in that estate. In some states, however,

while there is not a top executive exception, there may be a cap of age 70 for

protection. In those states, a top executive can be required to retire only if he

or she meets the criteria established under federal law and is age 70 or older

under state law.,

In addition, special rules regarding retirement plans and insurance may legally

apply to those who are age 65 and older:

• Since 1988, the Employee Retirement Income Security Act (ERISA) has

barred plans from ceasing or reducing retirement benefit accruals and/or

contributions for employees who work past normal retirement age.

• Employers must offer employees age 65 and older and their spouses the

same group insurance coverage provided to younger workers and their

spouses. Medicare is secondary until retirement.

The ADEA covers all private and public employers with 20 or more employees,

unions with 25 or more members, employment agencies, and apprenticeship and

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training programs. Unlike Title VII, which didn't get this coverage until 1991,

the ADEA has always allowed for jury trials. Instead of punitive damages, the

ADEA provides for doubling of the damages awarded by the jury for a "willful"

violation; compensatory damages aren't allowed.

The Supreme Court has long held that claims of disparate impact based on race,

color, gender, religion, and national origin exist under Title VII; however, the

Court did not recognize such claims under the ADEA until 2005, in Smith v. Jackson, Mississippi. In Smith, the Court held that, like Title VII, the ADEA

authorizes recovery on a disparate impact theory.

The Court did find that the scope of disparate impact liability under the ADEA is

narrower than that under Title VII. In defending against a claim under Title VII, an

employer must show that, although the policy or practice at issue may have had a

disparate impact on a protected class of employees, the policy or practice was

consistent with business necessity and there was no other way for the employer to

achieve its goals. In its decision in Smith, the Supreme Court held that, in

defending against a claim of disparate impact under the ADEA, an employer need

show only that its practice or policy was based on reasonable factors other than

age—a significantly lesser standard than required under Title VII.

While federal law protects only applicants and employees who are age 40 and

older, some state laws protect applicants and employees regardless of their age.

In these states, it would be unlawful to take adverse action against someone

because they look too young (but not because they do not have the experience

required by the job).

Pregnancy Discrimination Act (1978) The Pregnancy Discrimination Act of 1978 amended Title VII to prohibit

discrimination on the basis of pregnancy, childbirth, or related conditions; it

requires employers to treat pregnancy the same as any other temporary disability.

Employers must provide access to medical benefits and sick leave on the same

basis as such benefits are provided to other employees or for other conditions.

Under the Pregnancy Discrimination Act, it is illegal to:

• Refuse to hire a woman simply because she is pregnant.

• Fire a woman simply because she is pregnant.

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© 2011 SHRM


• Force a pregnant employee to leave work if she is ready, willing, and able to

perform her job.

• Stop the accrued seniority of an employee who has taken a leave to give birth

or have an abortion (unless seniority does not accrue to other disabled workers

under similar circumstances or unless a leave is taken under the FMLA).

Americans with Disabilities Act (1990) and ADA Amendments Act (2008)

The passage of the Americans with Disabilities Act (ADA) of 1990 created

many rights for individuals with disabilities and established many

responsibilities relating to this class of individuals for employers with 15 or

more employees. Title I of the ADA prohibits discrimination against a qualified

individual with a disability because of his or her disability. The ADA protects

qualified individuals with disabilities from unlawful discrimination in the

workplace, including access to training and career development. A qualified

individual with a disability is one who can perform the essential functions of the

job with or without reasonable accommodation.

The ADA's definition also includes individuals who have a record of, or who

are perceived or regarded as having, such an impairment. This definition closely

parallels the definition of "individual with a disability" found in the

Rehabilitation Act (which is covered later in this section).

The ADA also prohibits discrimination against a qualified individual because of

a known or perceived disability of an individual with whom the qualified

individual has a relationship or association.

The ADA Amendments Act (ADAAA) amends the ADA in significant areas.

• It prohibits consideration of mitigating measures in determining whether an

individual has a disability, with the exception of ordinary eyeglasses and

contact lenses. In other words, employees will be evaluated without regard

to the hearing aids, medication, prosthetic devices, and other measures they

use to manage their impairments.

• It expands the definition of "regarded as" by providing that an individual is

"regarded as" having a disability if the employee establishes that he or she

has been discriminated against because of an actual or perceived physical or

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mental impairment, whether or not the impairment limits or is perceived to

limit a major life activity. The impact of this change is that people who

suffer adverse employment actions, such as being fired, because they are

regarded as having an impairment can prevail if they prove that they were

discriminated against. However, the "regarded as" requirement does not

apply to transitory and minor impairments with an actual or expected

duration of less than six months.

Disability was originally defined by the ADA as a physical or mental impairment

that substantially limits one or more major life activities. Examples of major life

activities as recognized by the courts include (but are not limited to):

• Transferring/mobility.

• Toileting/personal hygiene.

• Bathing and dressing.

The ADAAA expands the definition of disability by introducing a new,

nonexhaustive list of major life activities that include caring for oneself, performing

manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending,

speaking, breathing, learning, reading, concentrating, thinking, communicating, and

working. For the first time, major life activities will also include the operation of

major bodily functions, including but not limited to functions of the immune

system; normal cell growth; and digestive, bowel, bladder, neurological, brain,

respiratory, circulatory, endocrine, and reproductive functions.

Most temporary conditions are not covered by the ADA. In contrast, many but

not all long-term or permanent conditions are covered. The Supreme Court has

mandated that an individualized determination must be made as to whether a

particular person is disabled. Employers cannot make determinations based

solely on the nature of the condition. Even so, the following conditions often are

covered by the ADA:

• Alcoholism

• Cancer

• Cerebral palsy

• Diabetes

• Drug addiction (rehabilitated drug users and those undergoing treatment)

• Emotional illness

• Epilepsy

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• Hearing and speech disorders

• HIV disease

• Mental retardation

• Multiple sclerosis

• Specific learning disabilities

The act specifically states that homosexuality, bisexuality, transvestitism, and

compulsive gambling are not physical or mental impairments.

ADA charges have been filed most often for disabilities such as bad backs,

neurological impairments, emotional/psychological impairments, and a variety

of physical impairments affecting the heart, vision, and hearing.

The; term essential functions refers to the primary job duties that a qualified

individual must be able to perform, either with or without accommodation. A

function may be considered essential for a variety of reasons, including (but

not limited to) the following items: ' 5

• The reason the job exists is to perform the function.

• There are a limited number of employees available among whom

performance of the job function can be distributed.

• The function may be highly specialized and require specific expertise or

ability.

• "Engaging in reasonable accommodation means modifying or adjusting a job

application process, a work environment, or the circumstances under which a

• . job 'Is usually performed to enable a qualified individual with a disability to be -

considered for the j ob and perform its essential functions. ̂ The A D AAA makes

it clear that employers will not be required to provide reasonable

accommodation to individuals who are regarded as having an impairment/

While the reasonableness of any particular accommodation must be considered

on a case-by-case basis, examples of potential reasonable accommodations

include the following:

• Assigning a reader to help an applicant who is visually impaired

• Constructing ramps or providing a wheelchair-accessible desk



• Lowering counters or drinking fountains

• Designing alternative formats for employee training

• Providing a telephone device for a person who is hearing-impaired

The ADA does not require employers to take actions that involve undue

hardship. Factors in deciding whether accommodation is necessary are:

• The individual's needs and desires for accommodation.

• The individual's abilities and limitations in performing a specific job.

• The nature of the business and the job.

• The resources of the employer.

• The options for accommodation.

• The extent of hardship for the employer in making the accommodation.

Identifying a reasonable accommodation is an interactive process between the

employer and the employee requesting the accommodation. It involves five key

steps, as shown in Figure 1.

Step 1. Individual asks for accommodation.

Step 2. Identify the barriers to performance of essential job functions for each individual.

Step 3. Identify possible accommodations that might be helpful in overcoming the barriers.

Step 4. Assess the reasonableness of the accommodations, including whether they are the employer's responsibility and whether they impose an undue hardship.

Step 5. Choose the appropriate accommodation for each individual.

Figure 1. Identifying a Reasonable Accommodation

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Failure to make reasonable accommodation can be proven if it can be shown that:

• The person with the disability was otherwise qualified for the position.

• A reasonable accommodation existed that would have enabled the person to

perform the essential functions of the job.

• Reasonable accommodation was requested but not provided.

If an employee returns to work following a personal or job-related injury or illness

that results in a permanent limitation, the employer needs to be sure that necessary

accommodations are evaluated and implemented to enable the employee to

perform the essential functions of the job and to ensure the safety of both the

employee and coworkers. Often employees' job duties can be modified so they can

perform the essential functions of jobs with their disabilities.

The ADA, the Family and Medical Leave Act (FMLA), and workers'

compensation are sometimes intertwined when dealing with an injured employee.

Module 4: Total Rewards discusses the FMLA in Section 4-5 and workers'

compensation in Section 4-6.

Genetic Information Nondiscrimination Act (2008) The Genetic Information Nondiscrimination Act (GINA) prohibits

discrimination against individuals on the basis of their genetic information in both

employment and health insurance. President Bush signed GINA into law on May

21, 2008. GINA employment provisions became effective in November 2009.

GINA prohibits an employer from discriminating against an individual in hiring,

firing, compensation, or terms or privileges of employment on the basis of genetic

information about the individual or a family member of the individual. It prohibits

an employer from requesting, requiring, or purchasing genetic information on the

individual or family member with the following exceptions:

• Where the employer inadvertently requests or requires family medical history

of the employee or family member of the employee

• For genetic services offered by the employer, including wellness programs

• For purposes of complying with the Family and Medical Leave Act

• Where the employer purchases documents that are commercially available



GINA describes a family member as the spouse of the individual; a dependent

child of the individual, including a child who is born to or placed for adoption

with the individual; or any first-, second-, third-, or fourth-degree relative of the

employee. For instance, this would include a parent, grandparent, or great-

grandparent.

GINA does allow for genetic monitoring of the biological effects of toxic

substances in the workplace. This is discussed in Module 6: Risk Management.

The act also has provisions regarding health-care coverage protections, exceptions

for genetic testing for health-care treatment, and confidentiality of genetic health-

care information. These provisions are discussed in Module 4: Total Rewards.

The EEOC has revised its "Equal Employment Opportunity Is the Law" poster to

reflect changes required by the Title II employment provisions of GINA. The

poster (or the "EEO Is the Law" poster supplement) can be found at

www.eeoc.gov/employers/poster.cfm.

Lilly Ledbetter Fair Pay Act (2009)

The Lilly Ledbetter Fair Pay Act creates a rolling or open time frame for

filing wage discrimination claims. The law retains the 180-/300-day time

frame outlined in Title VII, but now the clock renews each time employees

receive compensation that is based on an allegedly discriminatory decision by

the employer.

This act amends Title VII of the Civil Rights Act of 1964, Title I and Section

503 of the Americans with Disabilities Act of 1990, Sections 501 and 504 of the

Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of

1967.

The Ledbetter Act became the first bill signed into law by President Obama.

Lilly Ledbetter was paid less than her male coworkers for almost two decades.

The act overrules the U.S. Supreme Court 's May 2007 decision in Ledbetter v.

Goodyear Tire & Rubber Co. In that case, the Court held that the 180-day time

limit for filing a charge under Title VII of the Civil Rights Act starts after the


http://www.eeoc.gov/employers/poster.cfm


initial alleged unlawful employment action and does not restart upon receipt of

each successive paycheck.

The act provides that the charge-filing periods (300 days in most states and 180

days in states that do not have a fair employment agency) begin when:

• A discriminatory compensation decision or other practice is adopted.

• An individual becomes subject to the decision or practice.

• An individual is affected by the application of a decision or practice,

including each time wages, benefits, or compensation is paid, resulting in

whole or in part from such a decision or other practice.

Effectively, the statute of limitations starts each time an employee receives a

paycheck based on the decision.

The law also expands the plaintiff field and provides that an unlawful

employment practice occurs when "an aggrieved person" is affected by a

discriminatory compensation decision or practice. Now, nonemployees such as

family members, including spouses and children of a deceased worker, and

potentially others, may become plaintiffs in discrimination suits claiming that

pension benefits are reduced because of a discriminatory decision.

Additional information on the laws enforced by the Equal Employment

Opportunity Commission (EEOC) can be found at www.eeoc.gov.

The EEOC complaint process is discussed in detail in Section 5-1 of Module 5:

Employee and Labor Relations.

Uniform Guidelines on Employee Selection Procedures (1978) The Uniform Guidelines on Employee Selection Procedures covers all

aspects of the selection process, including recruiting, testing, interviewing,

and performance appraisals (to the extent that they are used to make

employment decisions). It is a procedural document that is published in

several places in the Code of Federal Regulations (including 29 CFR Part

1607 and 41 CFR Part 60-3) to assist employers in complying with Title VII,

Executive Order 11246, and other equal employment opportunity

requirements of federal law.


http://www.eeoc.gov


The guidelines recommend that employers (including federal contractors) be

able to demonstrate that selection procedures that have an adverse impact (or

disparate impact) upon minorities or women are valid in predicting or

measuring performance in a particular job. Any selection procedure that has an

adverse impact on the hiring of any protected class will be presumed

discriminatory and inconsistent with the guidelines unless the procedure has

been validated in accordance with the Uniform Guidelines or an alternative

selection procedure is used instead, provided the alternative procedure

eliminates the adverse impact, is lawful, and is as job-related as possible.

Under the guidelines, adverse impact occurs when the selection rate for an

employment decision works to the disadvantage of a protected class. As a rule

of thumb, this occurs when the selection rate for a protected class is less than

80% of the rate for the class with the highest selection rate. This is commonly

known as the 80% rule or four-fifths rule.

A revision of the Uniform Guidelines introduced the "bottom-line concept,"

which specifies that federal enforcement agencies will not expect an employer

to evaluate each component of the selection process individually if the total

selection process does not have an adverse impact.

Checking for adverse impact Let's look at an example of how to internally assess adverse impact using the

80% rule and where the majority group is the non-protected class group.

Example : Assume that a company interviewed the following people for factory assembly positions:

Group Number Interviewed Number Hired Males 40 20

Females 30 6

To determine adverse impact:

1. Identify the selection rate (the percentage hired) for each group. • The male selection rate is 50% (20 - 40 = 50%). • The female selection rate is 20% (6 + 30 = 20%).

2. Identify the group with the highest selection rate (males at 50%). This is the majority group.

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© 2011 SHRM


3. Divide the lowest selection rate by the highest selection rate (majority group).

20 - 50 = 40%

4. Adverse impact is indicated if the selection rate of the minority group (in this example, females) is less than 80%, or four-fifths, of the selection rate of the majority group (in this example, males).

In this case, adverse impact is indicated, since the selection rate of females is not 80% that of males. The female selection rate must be at least 40% to avoid a presumption of adverse impact (40/50 = 80%). However, they are hired at a rate of 20%.

When the 80% rale is violated and adverse impact occurs; employers have

the following alternatives:

• Analyze the data more rigorously to determine whether there is in fact

adverse impact. This may include both statistical and practical analyses.

(Note: This alternative may be the first step toward meeting the "strong

basis in evidence" standard set by the Supreme Court in Ricci v.

DeStefano in 2009, but it is not the only step.)

• Abandon the procedure. (Note: Under Ricci v. DeStefano, abandoning the , s

procedure and discarding the existing results because it creates adverse

impact appear to no longer be permitted if the test has been announced,

its intended use has been communicated, arid it has been implemented,

unless there is a strong basis in evidence that the procedure has an

- impermissible disparate impact—i.e., the procedure adversely impacts a .

protected group-and it [1] is not job-related and consistent with business "

necessity [i.e., is not valid] or [2] is valid but there is an equally valid,, v

• less discriminatory testing alternative. x >. s

• Modify the procedure to eliminate adverse impact. \ ,

> >' • • Validate the job-relatedness of the selection procedure (e.g., validation •

• studies, detailed records, and fact finding about alternatives with less

adverse impact).

• Justify the procedure as a business necessity. (Note: The guidelines do not

specifically refer to "business necessity"; however, a compelling business

necessity defense may be used to counter an adverse impact charge.)



Specific information on the Ricci v. DeStefano Supreme Court decision referenced in

this section can be found in the discussion of fairness issues and reverse discrimination

in Section 2-3 of this module, "Equal Employment Opportunity/Affirmative Action."

Employees can use statistical evidence to show potential discrimination against

women and minorities in discrimination claims. Moreover, any evidence that an

employer has a selection procedure that excludes members of a protected class,

whether intentional or not, may constitute adverse impact. An employer can

rebut the presumption of adverse impact by validating that the selection

procedure is job-related for the position at issue and is consistent with business

necessity or can challenge the validity of the employee's statistical analysis.

Additional information about the Uniform Guidelines on Employee Selection

Procedures can be found at www.access.gpo.gov/nara/cfr/waisidx_06/

29cfr l607 06.html.

Executive Orders and Legislation Affecting Affirmative Action Most government contractors are covered by the antidiscrimination laws

discussed earlier in this section, such as Title VII of the Civil Rights Act of

1964 and the Americans with Disabilities Act. Companies that do business

with the federal government must comply with additional laws and presidential

executive orders that prohibit discrimination and require affirmative action.

Affirmative action (AA) is the practice in which employers identify

conspicuous imbalances in their workforce and take positive steps to correct

underrepresentation of protected classes.

The federal laws for affirmative action obligations that apply to federal - ?S

government contractors and subcontractors include:

• Executive Order 11246, which covers women and minorities.

• The Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), as

amended by the Jobs for Veterans Act (J VA), which covers veterans (and

which is discussed later in this section).

• : , Section 503 of the Rehabilitation Act, which covers disabled workers.

• Executive Order 13496, which covers employee rights under the NLRA.


http://www.access.gpo.gov/nara/cfr/waisidx_06/


These laws are enforced by the Department of Labor's Employment

Standards Administration's Office of Federal Contract Compliance Programs

(OFCCP). All these laws prohibit illegal discrimination and require

affirmative action. The penalties for noncompliance can include withholding

of contracts or other administrative sanctions, including being debarred from

receiving future federal government contracts.

The laws and regulations above impose different legal obligations on

employers, depending on the value of the federal contracts/subcontracts and/or

the number of employees employed.

Executive Order 11246 requires contractors with 50 or more employees and a

federal contract or subcontract of $50,000 or more to create and annually

update an affirmative action plan (AAP) for women and minorities.

VEVRAA and JVA require affirmative action plans for covered contractors:

• VEVRAA applies to federal contracts or subcontracts of $50,000 or more

entered into prior to December 1, 2003. It requires contractors and

subcontractors with 50 or more employees to develop an AAP for special

disabled veterans, Vietnam-era veterans, recently separated veterans, and

other protected veterans.

• JVA applies to federal contracts or subcontracts of $ 100,000 or more

entered into or modified after December I, 2003. It requires contractors

and subcontractors with 50 or more employees to develop an AAP for

disabled veterans, recently separated veterans, armed forces service medal

veterans, and other protected veterans.

As a practical matter, most federal contracts are modified during the term of

the contract. Thus the requirements under VEVRAA regarding categories of

covered veterans will diminish over time while the requirements under JVA

will dominate.

The Executive Order 11246 AAP must be a separate plan; the Section 503 and

VEVRAA/JVA AAPs can (but don't have to) be combined. Contractors with

© 2011 SHRM


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both pre- and post-December 1, 2003, contracts in the proper amounts and with

50 or more employees may develop one AAP to satisfy their obligations.

In regard to Executive Order 13496, beginning on June 21, 2010, contractors

entering into contracts with the federal government must:

• Post notices informing employees about their rights under federal labor

law.

• Include provisions in their contracts that require their subcontractors to post

the same employee notice.

(Note that Executive Order 13201 (the Beck Notice) has been repealed, and so

have the Labor Department's regulations implementing that executive order.)

Contracts, subcontracts, and purchase orders must now also reference this new

regulation (29 CFR Part 471, Appendix A to Subpart A).

Nonunion employers must also comply with the regulations if they are a

federal contractor or subcontractor.

The notice informs employees of federal contractors and subcontractors of their

rights under the NLRA to organize and bargain collectively with their

employers and to engage in other protected concerted activity. Additionally,

the notice provides examples of illegal conduct by employers and unions, and

it provides contact information to the National Labor Relations Board

(www.nlrb.gov), the agency responsible for enforcing the NLRA.

Federal contractors and subcontractors are required to post the prescribed

employee notice conspicuously in plants and offices where employees covered

by the NLRA engage in contract-related activity, which includes indirect or

auxiliary work without which the contract could not be effectuated, such as

maintenance, repair, personnel, and payroll work. The notice must be posted in

all places where notices to employees are customarily posted both physically

and electronically.

Where a significant portion of a contractor's workforce is not proficient in

English, contractors and subcontractors must provide the employee notice in

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© 2011 SHRM

http://www.nlrb.gov


languages spoken by employees, and the department will provide translations

of the employee notice that can be used to comply with the physical and

electronic posting requirements.

Federal government contracting departments and agencies must include the

prescribed notice in eveiy government contract, except collective bargaining

agreements entered into by a federal agency, prime contracts under $100,000,

and subcontracts below $10,000. Government contractors must also include

provisions requiring posting of the prescribed notice in all subcontracts. Public

employers, such as state universities, are excluded from the rule's application.

Specifically, Section 471.4(a) excludes the U.S. and the states and their

political subdivisions.

Enforcement responsibilities for the notice requirements are shared by two

Department of Labor agencies. The Office of Federal Contract Compliance

Programs (OFCCP) is responsible for investigation of complaints, compliance

evaluations, and conciliation, and that agency will refer violations to the Office

of Labor-Management Standards (OLMS) for enforcement. The sanctions,

penalties, and remedies for noncompliance with the notice requirements

include the suspension or cancellation of the contract and the debarring of

federal contractors from future federal contracts. Employees may file

complaints with the OFCCP or the OLMS about contractors and subcontractors

that do not comply with the Labor Department's posting requirements.

Employees may also file complaints if the required contract provisions are not

included in contracts and subcontracts.

Following is an example of the minimum language that must be included as of

June 21, 2010:

is an equal employment opportunity employer. As such, 41 CFR 60-1.4(a), 41 CFR 60-250.5, 41 CFR 60-300.5, and 41 CFR 60-741.5 as well as 29 CFR Part 471, Appendix A to Subpart A are herein incorporated by reference.

A copy of the notice may be downloaded from www.dol.gov/olms/regs/

compliance/EO 13496.htm.


http://www.dol.gov/olms/regs/


Affirmative action plans are also covered in Section 2-3 in this module, "Equal

Employment Opportunity/Affirmative Action."

Vietnam Era Veterans Readjustment Assistance Act (1974) and Jobs for Veterans Act

The Vietnam Era Veterans Readjustment Assistance Act (VEVRAA)

applies to the federal government and those federal government contractors and

subcontractors who meet the requirements listed above. Along with its

implementing regulations, VEVRAA prohibits discrimination against:

• Special disabled veterans (veterans who have a compensable disability rate

of 30% or more, who have been determined to have a "serious employment

handicap," or who were discharged from active duty due to a service-

connected disability, as determined by the Veterans Administration).

• Vietnam-era veterans.

• Recently separated veterans (within one year of discharge).

• Other protected veterans (veterans who served on active duty during a war,

campaign, or expedition for which a campaign badge has been authorized).

The Jobs for Veterans Act (JVA), along with its implementing regulations,

issued in August 2007, amends VEVRAA in the following significant areas:

• Requires contractors with post-December 1, 2003, contracts (or contracts

modified after December 1, 2003) to engage in affirmative action for:

® All disabled veterans.

® Veterans discharged or released from active duty in the last one to three

years.

® Veterans who served on active duty in the U.S. military, ground, naval,

or air service during a war, campaign, or expedition for which a

campaign badge was authorized.

® Armed forces service medal veterans (veterans who served on active

duty in the United States armed forces during a United States military

operation for which an armed forces service medal was awarded

according to Executive Order 12985).

• Increases the contract monetary threshold that creates affirmative action

obligations, as discussed earlier.



• Modifies the mandatory job listing requirement for covered contractors.

VEVRAA regulations previously allowed covered contractors to satisfy

their job listing obligations by listing employment openings with the

appropriate local employment service office. The JVA requires each

covered contractor to list employment openings with the appropriate

"employment service delivery system" or the "appropriate state workforce

agencyjob bank" (which is the agency job bank in the state where the job

opening occurs).

Both VEVRAA and JVA require contractors and subcontractors to file a

supplemental report by September 30 of each year describing the company's

hiring practices regarding covered veterans.

• The VETS-100 report is required under VEVRAA. It requires the reporting

of hiring practices regarding special disabled veterans, Vietnam-era

veterans, recently separated veterans, and other protected veterans.

• The VETS-100 (A) report is required under JVA. It requires the reporting

of hiring practices regarding disabled veterans, recently separated veterans,

armed forces service medal veterans, and other protected veterans.

Additional information on the obligations of federal government contractors

under VEVRAA and JVA can be found at the Office of Federal Contract

Compliance Programs Web site, www.dol.gov/ofccp, and the Veterans'

Employment and Training Service Web site, www.dol.gov/vets.

Rehabilitation Act (1973) The Rehabilitation Act of 1973 prohibits discrimination based on physical or

mental disabilities. Section 501 applies only to the federal government as an

employer. Section 503 applies only to federal contractors and subcontractors

with contracts over $10,000 and requires them to take affirmative action to hire

qualified disabled people. The act also requires all covered employers to make

reasonable accommodation for the physical or mental disability unless the

employer can demonstrate undue hardship based upon business necessity and

financial cost (significant difficulty or expense). Employers are not required to

employ unqualified persons.


http://www.dol.gov/ofccp

http://www.dol.gov/vets


Under the Rehabilitation Act, the term "individual with a disability" has been

defined as any person who has a physical or mental impairment that

substantially limits one or more of his or her major life activities, has a record

of such impairment, and/or is perceived as having such an impairment.

The Rehabilitation Act guidelines for contractors require reasonable

accommodation to be considered for the disabled, which may include the following:

• Job accessibility. Adding wheelchair ramps, Braille signs on elevators, air

conditioning for workers with respiratory problems, etc.

• Job design. Eliminating tasks that a disabled person cannot perform and that

are not really necessary in the job.

• Qualifications. Eliminating unnecessary job specifications, such as a physical

exam, that might limit the entry of disabled applicants.

• Nondiscriminatory treatment. Eliminating hiring decisions based on people's

fears or uneasiness about disabilities such as epilepsy or speech impairment.

This act took on added prominence because of a Supreme Court ruling that

suggested it could be used to prohibit discrimination against people with AIDS.

In School Board of Nassau v. Arline (1987), while the Court expressly declined

to address the AIDS issue, they ruled that persons with contagious diseases

could be covered by the act. In this case, a schoolteacher was dismissed because

she had tuberculosis, an infectious respiratory disease. The Court held that the

fact that a disease is contagious can place an employee under the protection of

the act since mere fear of the disease (rather than its actual likelihood of being

transmitted) might cause employers to discriminate against the ailing persons.

Immigration Reform and Control Act (1986) On March 1, 2003, services formerly provided by the Immigration and

Naturalization Service (INS) transitioned into the Department of Homeland

Security (DHS) under U.S. Citizenship and Immigration Services (USCIS). The

priorities of the USCIS are to promote national security, continue to eliminate



immigration case backlogs, and improve customer services. The USCIS oversees

citizenship, asylum, lawful permanent residency, employment authorization,

refugee status, intercountry adoptions, replacement immigration documents,

family and employment-related immigration, and foreign student authorization. It

also enforces the Immigration Reform and Control Act (IRCA), which

attempts to deal with problems arising from the flow of illegal aliens into the U.S.

Designed to accomplish two somewhat divergent purposes, IRCA prohibits

discrimination against job applicants on the basis of national origin or

citizenship and, at the same time, establishes penalties for hiring illegal aliens.

Employers who knowingly hire someone who is not entitled to work in this

country face both civil and criminal penalties. While Title VII allows preference

for U.S. citizens, IRCA does not.

The burden of verifying that a new employee is eligible to work in the U.S.

falls on the employer. Generally, within three days of hiring, both the new

hire and the employer must fill out Form 1-9, Eligibility Verification Form,

which is kept in the employer's files. This form verifies two facts about the

employee: identity and right to work in the U.S.

Effective April 3, 2009, employers were required to use a new version of the I-

9 form. The changes result from a USCIS ruling published in December 2008

revising the types of identity and employment authorization documents

employers can accept from new hires. Employees can no longer use expired

identification documents to verify their work eligibility.

Figure 2 lists the acceptable documents that establish identity and right to

work. The employee selects which document(s) he or she wishes to present as

part of the 1-9 verification process. The employer may not specify which

documents must be presented. All documents must be unexpired.

For additional information, check the USCIS Web site. Refer to www.uscis.gov/

i-9.

© 2011 SHRM


2-27

http://www.uscis.gov/


List A—Documents That Establish Both Identity and Employment Authorization

U.S. passport or U.S. passport card

Permanent Resident Card or Alien Registration Receipt Card with photograph (Form 1-551)

Foreign passport with temporary 1-551 stamp or temporary 1-551 printed notation on machine-readable immigrant visa

Employment Authorization Document that contains photograph (Form I-766)

Foreign passport with Form I-94 or Form I 94A, bearing the same name as the passport and containing an endorsement of the alien's nonimmigrant status, if that status authorizes the alien to work for the employer

Passport from the Federated States of Micronesia (FSM) or the Republic of the Marshall Islands (RMI), with Form I-94 or Form I-94A indicating nonimmigrant admission

List B—Documents That Establish Identity

Driver's license or ID card issued by state or outlying possession of the United States, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address

ID card issued by federal, state, or local government agencies or entities, provided it contains a photograph or information such as name, date of birth, gender, height, eye color, and address

School ID card with photograph

Voter's Registration Card

U.S. military card or draft record

• Military dependent's ID card

• U.S. Coast Guard Merchant Mariner Card

• Native American tribal document*

• Driver's license issued by Canadian government authority

For persons under age 18 who are unable to present a document listed above:

• School record or report card

• Clinic, doctor, or hospital record

• Day care or nursery school record

List C—Documents That Establish Employment Authorization

U.S. Social Security card issued by Social Security Administration (other than card stating that it is not valid for employment)

Certification of Birth Abroad issued by Department of State (FS-545)

Certification of Report of Birth issued by Department of State (Form DS-1350)

Original or certified copy of birth certificate issued by state, county, municipal authority, or territory of United States bearing official seal

Native American tribal document*

U.S. citizen ID card (Form 1-197)*

ID card for use of resident citizen in United States (Form 1-179)*

Employment authorization document issued by DHS (other than those listed under List A)

* Even though these documents are not in List A, they establish both identity and employment authorization on Form I-9. If presented by an employee, no other documents are required in order to complete Section 2 of Form I-9.

Source: U.S. Citizenship and Immigration Services, www.uscis.gov

Figure 2. Acceptable Form 1-9 Documents


http://www.uscis.gov


E-Verify An executive order requiring that federal contractors use E-Verify to check the

employment eligibility of all newly hired employees, as well as all current

employees directly working on a contract, became effective on September 8,

2009. Originally slated to begin January 15, 2009, the new federal rule was

postponed multiple times due to federal court proceedings challenging the legality

of the mandate. A three-year extension of E-Verify was signed into law by

President Obama on October 28, 2009, to last until the end of September 2012.

E-Verify is an Internet-based verification system operated by the USCIS in

partnership with the Social Security Administration. The system allows employers

to verify the employment eligibility of their employees, regardless of citizenship.

E-Verify electronically checks the information provided by the employee on his

or her Form 1-9 against records contained in Department of Homeland Security

and Social Security Administration databases.

The final rule applies to solicitations issued and contracts awarded after the

effective date (September 8, 2009). Under the final rule, employers are required to

enroll in E-Verify if and when they are awarded a federal contract or subcontract

that requires participation in E-Verify as a term of the contract.

The requirement for federal contractors and subcontractors to use E-Verify

represents a significant change. Not only do employers with government contracts

or subcontracts have to verify employment eligibility for new hires; they also have

to re-verify a subset of existing employees who are classified as "employees

assigned to the contract." Primary contractors are also required to oversee

subcontractors' compliance with the E-Verify program and are subject to

vicarious liability for their subcontractors' failure to comply.

The final rule requires all federal government contracts and solicitations of at least

$ 100,000 on the effective date or thereafter to include a clause requiring the

contractor to use E-Verify in compliance with the final regulations. All subcontracts

for $3,000 or more must include a similar clause. In addition, contracting agencies

must amend on a bilateral basis existing indefinite-delivery/indefinite-quantity

contracts to include the clause requiring E-Verify for future orders if the remaining

period of performance extends at least six months after the effective date.

© 2011 SHRM


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Covered contractors and subcontractors not already enrolled in E-Verify must:

• Enroll in E-Verify within 30 calendar days of being awarded a covered

government contract or subcontract.

• Initiate E-Verify queries for all employees working on a covered contract

within 90 calendar days of enrollment in E-Verify or within 30 calendar days

of the employee's assignment to the contract, whichever date is later.

(Alternatively, a contractor or subcontractor may elect to verify employment

eligibility of all existing employees hired after November 6, 1986, within 180

days of enrollment or notification to the E-Verify program that it will be

electing this option.)

• Implement use of E-Verify to verify employment eligibility of all new hires,

even those not assigned to a covered contract, within 90 calendar days of

enrollment. E-Verify queries for all new hires must be submitted within three

business days of the employee's hire date.

Contractors that do not comply with these requirements may be suspended or

debarred from further government contracting.

Before the final rule became effective, participation in E-Verify was voluntary,

except for employers with operations in states that had already enacted laws

requiring the use of E-Verify.

The USCIS has published extensive information on its Web site, www.uscis.gov,

regarding application of the rule.

Visas From the U.S. perspective, the underlying theme of U.S. immigration law is to

ensure that:

• Those individuals who enter the United States do so lawfully.

• Those individuals who reside and work in the United States, whether

permanently or temporarily, do so with the approval and knowledge of the

United States government.




Two categories of visas are available under the immigration laws. They are

broadly grouped as immigrant visas and nonimmigrant visas. Immigrant

visas are typically referred to as "green cards" and are permanent, while

nonimmigrant visas are temporary. Each type of visa has specific

employment conditions and requirements. The paperwork for bringing in

foreign workers is usually handled by human resources, with the assistance

of experienced immigration counsel.

The visa information presented here is not intended to be all-inclusive. This

is an overview and should not be used as a substitute for legal advice from

an experienced immigration attorney.

Immigrant visas. There are three key employment-based immigrant visa

categories, divided into preference groups based on their importance and

the number of immigrant visas allocated to each group annually.

• First preference—Priority Workers: EB-1

Employers do not need to test the U.S. labor market (or file a labor

certification application) to determine that there are no minimally

qualified U.S. workers for these jobs.

• Second preference: EB-2

In most cases for this category, employers must test the U.S. labor

market through a labor certification application to determine whether

there are minimally qualified U.S. workers for the position. Foreign

nationals in this category are required to have a job offer.

• Third preference: EB-3

This category is reserved for people who do not have advanced degrees

or otherwise qualify under the EB-1 or EB-2 categories but who meet

other criteria regarding work experience and education. Typically

individuals with a bachelor's degree will fit in this category. Employers

are required to complete the labor certification process for people in the

EB-3 category.

Figure 3 provides an overview of these categories of immigrant visas.



First Preference—Priority Workers: EB-1

Extraordinary ability Aliens with extraordinary ability in the arts, sciences, education, business, or athletics may be granted permanent residence status if they can show, among other things, that they have received a major award in their field or that their work has received major recognition. USCIS guidelines determine what constitutes "extraordinary" for the purposes of this category.

Outstanding professors and researchers

Outstanding professors and researchers with at least three years of experience and an offer of employment may fit in this category. There must be evidence that the person is outstanding in his or her academic field. USCIS guidelines determine what constitutes "outstanding" for the purposes of this category.

Certain multinational managers and executives

This category is reserved for executives and managers who (1) have been working for the same or an affiliated company outside the United States in an executive or managerial capacity for at least one of the three years immediately preceding the petition, or (2) in the case of a worker who is already in the United States, if he or she worked in a managerial or executive capacity for the foreign parent or subsidiary for at least one of the three years.

Second Preference—Priority Workers: EB-2

Professionals with advanced degrees

This category is reserved for professionals holding advanced degrees (any degree beyond a bachelor's degree) or with a bachelor's degree plus five years of professional experience.

Aliens with exceptional ability

This category applies to aliens with exceptional ability in the sciences, arts, or business. USCIS guidelines determine what constitutes "exceptional" for the purposes of this category.

Third Preference—Priority Workers: EB-3

Professionals An occupation is considered professional if a bachelor's degree or the foreign degree equivalent is the minimum entry requirement of the field.

Skilled workers This includes positions that require at least two years of experience or training.

Other workers Other workers include unskilled labor, such as domestics and nannies.

Figure 3. Primary Employment-Based Immigrant Visas

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© 2011 SHRM


Nonimmigrant visas. Nonimmigrant visas are available to aliens who want to

come to the U.S. for a temporary period of time. Some of the nonimmigrant visas

that are typically used by businesses are described in Figure 4.

Nonimmigrant Visa , , _ _ . a Key Provisions r a t o n n n /

Business Visitor: B-1 Business visitors may be permitted to enter the United States for the purpose of engaging in business activities (including but not limited to attending meetings, seminars, or conferences or negotiating contracts) but may not be gainfully employed by a U.S. company.

Specialty Occupation Workers: H-1B

This visa is reserved for professionals (including but not limited to engineers, computer scientists, biotechnologists, university professors, marketers, and health-care professionals) who come to the U.S. for a limited amount of time. The alien must have a baccalaureate degree (a foreign equivalent or equivalent experience may also be acceptable), and the degree must be a usual requirement for the position. H-1B workers must be paid at least the same wage rates as are paid to U.S. workers who perform the same types of work or the prevailing wages in the areas of intended employment. This category is subject to yearly numerical limitations imposed by USCIS.

Intracompany Transferee: L-1

Aliens who work for a foreign employer and are transferred to the U.S. to work for a parent, subsidiary, or affiliate company qualify for L-1 visas if they have held a specialized knowledge, management, or executive position during one of the last three years before entering the U.S.

Treaty Investors and Traders: E-1 and E-2

These visas are reserved for aliens in countries with which the U.S. has commerce, navigation, and investment treaties. These aliens come into the U.S. to work for companies based in their home country that are investing or trading in the U.S.

Australian Free Trade/ Specialty Occupation Workers: E-3

This category is specific to Australian citizens and applies generally to positions very similar to those covered by the H-1B visa category.

Students: F-1 These visas are reserved for full-time university, college, high school, or elementary students who study at a school approved by the USCIS. Generally, students must not accept employment, except for on-campus employment and employment directly related to their curriculum.

Exchange Visitors: J-1 J-1 visas apply to aliens in government-approved exchange visitor programs. These visas are managed by the Department of State.

North American Free Trade Agreement (NAFTA): TN

TN visas are available only to citizens of Canada and Mexico whose occupations appear on a NAFTA schedule and who have the necessary education or experience.

0 visas 0 visas are temporary visas available for persons of extraordinary ability in the arts, sciences, education, business, or athletics that has been demonstrated by sustained national or international acclaim.

Q visas Q visas are used by cultural exchange visitors who come to the U.S. to work temporarily.

Figure 4. Common Nonimmigrant Business Visas



PERM PERM (Program Electronic Review Management) is the streamlined process

for obtaining labor certification, the first stage of the green card process for

foreign nationals seeking permanent residence through their employment. The

PERM program officially went into effect on March 28, 2005.

The PERM program helps meet workforce needs when there are no available

American workers to fill a job. The Department of Labor is able to process

requests to fill vacancies with foreign workers only after employers affirm that

no American workers are available. The DOL has set a goal to process and

certify cases within 45 to 60 days. Once a permanent labor certification is issued

by the department, an employer must then petition the U.S. Department of

Homeland Security and the State Department to complete the visa approval

process.

The new system requires employers to conduct recruitment before filing their

applications. State workforce agencies (SWAs) will provide prevailing wage

determinations to employers but will no longer receive or process applications

as they do under the current system. Employers will be required to place a job

order with the SWA, but the job order will be processed the same as any other

job order. Employers will have the option of filing applications electronically,

using Web-based forms and instructions, or by mail.

For more information, see the discussion of permanent labor certification at

www.foreignlaborcert.doleta.gov/perm.cfm.

Worker Adjustment and Retraining Notification Act (1988) The Worker Adjustment and Retraining Notification (WARN) Act requires

some employers to give a minimum of 60 days' notice if a plant is to close or if

mass layoffs will occur. This act allows displaced workers adequate time to

search for a new job; therefore, it potentially reduces the impact of any mass

layoff or plant closing. WARN affects employers who employ 100 or more:

• Full-time employees, or

• Full-time and part-time employees who, in the aggregate, work at least

4,000 hours (exclusive of overtime hours) per week at all employment sites.


http://www.foreignlaborcert.doleta.gov/perm.cfm


The definition of "part-time" includes not only employees who regularly work

fewer than 20 hours per week but also employees who have been employed for

fewer than six of the preceding 12 months. A new employee who works a full-

time schedule but has been employed for only six months falls into this

category.

The 60 days' notice must be given to the following:

• Affected workers or their representatives

• State dislocated worker units

• The chief elected official of the local government where the closing or

layoff is to occur

Specific provisions of the act are as follows.

• Employment loss

WARN defines employment loss as the involuntary termination of

employment (other than for cause), layoff for more than six months, or at least

50% reduction in hours for each month of a six-month period. Part-time

employees are excluded by definition and are not considered in the definition.

• Plant closings

WARN defines a plant closing as a shutdown, either temporary or

permanent, of an entire single site or one or more facilities or operating units

within a single employment site that results'in an "employment loss" during

any 30-day period for 50 or more full-time employees. Part-time employees

are excluded by definition and are not counted in the required number of 50.

• Mass layoffs

WARN defines a mass layoff as a reduction in force, not a plant closing,

during any 30-day period that results in the employment loss at a single

employment site for either 50 or more full-time employees, if they compose

33% of the workforce at the employment site, or 500 or more full-time

employees. Part-time employees are excluded by definition and are not

counted in the required numbers of 50 or 500.

A number of states have "baby WARN" laws, which may apply even when

federal WARN does not. For example, some of these laws apply to smaller

© 2011 SHRM


2-35


employers and/or require a smaller number of employees to experience an

"employment loss" in order for there to be a covered plant closing and/or mass

layoff. Accordingly, state laws must be checked as well.

Congressional Accountability Act (1995) The Congressional Accountability Act, passed by Congress in 1995, requires

that federal employee relations legislation enacted by Congress apply to the

employees of Congress as well.

Congress must comply with the following:

• Fair Labor Standards Act of 193 8

• Title VII of the Civil Rights Act of 1964, as amended in 1991

• Occupational Safety and Health Act of 1970

• Americans with Disabilities Act of 1990

• Family and Medical Leave Act of 1993

• Civil Service Reform Act of 1978

• Age Discrimination in Employment Act of 1967

• Employee Polygraph Protection Act of 1988

• Worker Adjustment and Retraining Notification Act of 1988

• Rehabilitation Act of 1973

• Veterans Reemployment Act of 1994

Uniformed Services Employment and Reemployment Rights Act (1994) The Uniformed Services Employment and Reemployment Rights Act

(USERRA) of 1994 was enacted to protect the employment, reemployment, and

retention rights of persons who voluntarily or involuntarily serve or have served

in the uniformed services.

USERRA is covered in more detail in Section 4-5, "Introduction to Benefit

Programs and Key Benefits Legislation" of Module 4: Total Rewards.

Additional information on USERRA can be found at the DOL Web site,

www.dol.gov.

Note that many state laws may provide protection for employees beyond what

USERRA provides. Employees are entitled to the maximum protection afforded

under federal and/or state law.


http://www.dol.gov


Figure 5 summarizes important provisions of the employee rights legislation

discussed up to this point. Some of these laws have a broad civil rights

emphasis; others address specific equal employment opportunity concerns.

Major Employee Rights Legislation

Antidiscrimination Legislation

Key Provisions

Title VII of the Civil Rights Act of 1964

Prohibits discrimination or segregation based on race, color, national origin, religion, and gender in all terms and conditions of employment

Civil Rights Act of 1991 Expands possible damage awards available to victims of intentional discrimination to include compensatory and punitive damages; gives plaintiffs in cases of alleged intentional discrimination right to a jury trial

Age Discrimination in Employment Act

Prohibits discrimination in employment for persons age 40 and over except where age is a bona fide occupational qualification

Pregnancy Discrimination Act

Amends Title VII to prohibit discrimination on the basis of pregnancy, childbirth, or related condit ions; requires employers to treat pregnancy the same as any other temporary disability

Americans with Disabilities Act and ADA Amendments Act

Prohibits discrimination against a qualified individual with a disability because of his or her disability; protects qualified individuals with disabilities from unlawful discrimination in the workplace, including access to training and career development

Genetic Information Nondiscrimination Act (GINA)

Prohibits discrimination against individuals on the basis of their genetic information in both employment and health insurance

Lilly Ledbetter Fair Pay Act

Creates a rolling t ime frame for filing wage discrimination claims; retains the 180-/300-day t ime frame outlined in the Title VII but al lows the clock to renew each time employees receive compensat ion that is based on a discriminatory decision by the employer

Uniform Guidelines on Employee Selection Procedures

Assists employers in complying with federal regulations prohibiting discrimination

Figure 5. Major Employee Rights Legislation (continued next page)



Affirmative Action and Antidiscrimination Legislation

Executive Order 11246 Prohibits discrimination and requires federal contractors and subcontractors to take positive, results-oriented steps to eliminate employment barriers to women and minorities

Vietnam Era Veterans Readjustment Assistance Act and Jobs for Veterans Act

Prohibit discrimination against certain veterans by the U.S. government and federal contractors; require affirmative action

Rehabilitation Act Prohibits discrimination based on physical or mental disabilities; requires employers to make reasonable accommodat ion for the physical or mental disability unless there is undue hardship; applies only to the federal government or federal contractors with contracts over $10,000; requires affirmative action

Executive Order 13496

Other Key Legislation

Immigration Reform and Control Act

Requires contractors entering into contracts with the federal government to post notices informing employees about their rights under federal labor law and include provisions in their contracts that require their subcontractors to post the same employee notice

Prohibits discrimination against job applicants on basis of national origin or citizenship; establishes penalties for hiring illegal aliens and requires employers to establish each employee's identity and eligibility to work

Worker Adjustment and Retraining Notification Act

Requires some employers to give a minimum of 60 days' notice if a plant is to close or if mass layoffs will occur

Congressional Accountabil i ty Act

Requires that federal employee relations legislation enacted by Congress apply to the employees of Congress

Uniformed Services Employment and Reemployment Rights Act

Protects the employment, reemployment, and retention rights of persons who serve or have served in the uniformed services.

Figure 5. Major Employee Rights Legislation (concluded)

Many states and some municipalities have also enacted antidiscrimination

legislation. In some jurisdictions, these laws are referred to as "fair employment



practices" or "human relations" legislation, but the intent is the same as with the

federal regulations—to protect against discrimination in the workplace. Be sure

you are current on any relevant state and local regulations for your area.

State laws and regulations may offer greater protection than federal laws and

regulations, but states cannot take away or lower the level of protection offered

by federal regulations.

The following are two examples:

• According to California law (not federal law), it is illegal to discriminate on

the basis of sexual orientation in all employment decisions.

• The federal Family and Medical Leave Act was passed after the District of

Columbia Family and Medical Leave Act, and the federal law was not as

generous as the D.C. law. Employees are entitled to the most generous

interpretation of the laws together (D.C.: 16 weeks of family leave and 16

weeks of medical leave in 24 months).

The federal Family and Medical Leave Act (FMLA) is discussed in Section 4-5

of Module 4: Total Rewards.



Progress Check

Directions: Choose the best answer to each question.

1. Which of the following statements about Title VII of the Civil Rights Act of 1964 is true?

( ) a. It prohibits discrimination or segregation based on race, color, national origin,

religion, and gender.

( ) b. It removes the limits, or "caps," on damages awarded for intentional

discrimination on the basis of gender, religion, or disability.

( ) c. It prohibits employers from giving temporary preference to any underrepresented

protected class.

( ) d. It prohibits discrimination or segregation based on race, color, national origin,

religion, and age.

2. Which federal agency was established to investigate charges of discrimination under Title

VII?

( ) a. NLRB

( ) b. Workers' Compensation Board

( ) c. EEOC

( ) d. ADA Board

3. Which court ruling creates a safe harbor from punitive damages for employers with good-

faith antidiscrimination practices?

( ) a. Faragher v. City of Boca Raton

( ) b. Kolstad v. American Dental Association

( ) c. Meritor Savings Bank v. Vinson

( ) d. General Dynamics Land Systems v. Cline

4. Which legislation prohibits mandatory retirement based on age?

( ) a. Older Worker's Benefit Protection Act (1990)

( ) b. Age Discrimination in Employment Act (1967)

( ) c. Rehabilitation Act (1973)

( ) d. Title I of the Americans with Disabilities Act (1990)

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© 2011 SHRM


5. The Rehabilitation Act of 1973 prohibits discrimination on the basis of

( ) a. age.

( ) b. disability.

( ) c. gender.

( ) d. national origin.

6. Which of the following statements about the Rehabilitation Act is true?

( ) a. The consequences of discrimination under the act are limited to the withholding

of contracts or other administrative sanctions.

( ) b. It was replaced by the Americans with Disabilities Act of 1990.

( ) c. It applies to all businesses with 50 or more employees.

( ) d. It requires certain employers to make reasonable accommodations for physical or

mental disabilities unless the employer can demonstrate undue hardship.

7. Which of the following statements about the Americans with Disabilities Act is true?

( ) a. It deals exclusively with employment issues for the disabled.

( ) b. A reasonable accommodation could include hiring an interpreter for a job

interview with a deaf applicant.

( ) c. Employers can no longer claim "undue hardship" to escape making the workplace

accessible to disabled workers.

( ) d. Current drug users are considered disabled under the definition in the act.

8. The Pregnancy Discrimination Act of 1978 requires employers to treat pregnancy

( ) a. under the provisions for protected classes.

( ) b. the same as any other temporary disability.

( ) c. under existing provisions for a long-term disability.

( ) d. as a reasonable ADA accommodation.

9. Which of the following documents establishes a worker's identity and right to work for Form

1-9?

( ) a. U.S. passport

( ) b. Driver's license with photo ID

( ) c. U.S. birth certificate

( ) d. U.S. military card

© 2011 SHRM


2-41


10. Under the Immigration Reform and Control Act of 1986, which of the following verifies the

right to work?

( ) a. U.S. military card

( ) b. Government ID card

( ) c. U.S. Social Security card

( ) d. Driver's license with photo ID

11. Under the EEOC's selection guidelines, adverse impact occurs when the selection rate for a

protected class is less than what percentage of that for the group with the highest selection

rate?

( ) a. 20%

( ) b. 50%

( ) c. 67%

( ) d. 80%

12. Which legislation protects workers displaced in the merger of two corporations?

( ) a. Worker Adjustment and Retraining Notification Act

( ) b. Uniform Guidelines on Employee Selection Procedures

( ) c. Executive Order 11246

( ) d. Immigration Reform and Control Act

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© 2011 SHRM


Progress Check Answers

1. a (p. 2-5)

2. c (p . 2-6)

3. b (p. 2-8)

4. b ( p . 2-8)

5. b (p. 2-25)

6. d (p. 2-25)

7. b (p. 2-13)

8. b (p. 2-10)

9. a (p. 2-28)

10. c (p. 2-28)

11. d (p. 2-18)

12. a (p. 2-35)

© 2011 SHRM


2-43

Workforce Planning

3nd Employment

2.2

Key Legislation Affecting Privacy and Consumer

Protection


• Ensure that workforce planning and employment . activities are compliant with applicable federal, state, and

local laws and regulations.



• Organizational documentation requirements to meet federal and state requirements.

i t i l i S h n


Privacy Legislation HR professionals should be familiar with the two primary pieces of legislation

affecting employee privacy: the Privacy Act and the Employee Polygraph

Protection Act.

Privacy Act of 1974 The Privacy Act protects the employment records of federal government

employees from disclosure without prior written authorization. Several attempts

have been made to give private-sector employees additional privacy protections;

these have been unsuccessful. Some state legislatures and private employers

have adopted guidelines regarding employee privacy and access to personnel

files.

Employee Polygraph Protection Act (1988) The Employee Polygraph Protection Act of 1988 generally prevents

employers engaged in or affecting interstate commerce from using lie

detector tests either for preemployment screening or during the course of

employment, with certain exemptions.

Definitions Lie detectors include polygraphs, deceptographs, voice stress analyzers,

psychological stress evaluators, or similar devices (whether mechanical or

electrical) used to render a diagnostic opinion as to the honesty or dishonesty

of an individual.

A polygraph is an instrument that records continuously, visually,

permanently, and simultaneously changes in cardiovascular, respiratory, and

electrodermal patterns as minimum instrumentation standards and is used to

render a diagnostic opinion as to the honesty or dishonesty of an individual.

Prohibitions An employer shall not, directly or indirectly:

• Require, request, suggest, or cause an employee or prospective employee

to take or submit to any lie detector test.

• Use, accept, refer to, or inquire about the results of any lie detector test of

an employee or prospective employee.

2-46


© 2011 SHRM


• Discharge, discipline, discriminate against, deny employment or

promotion, or threaten to take any such action against an employee or

prospective employee for refusal to take a test, on the basis of the results

of a test, for filing a complaint under the act, for testifying in any such

proceeding, or for exercising any rights afforded by the act.

Exemptions Federal, state, and local governments are excluded.

In addition, lie detector tests administered by the federal government to

employees of federal contractors engaged in national security

intelligence or counterintelligence functions are exempt.

The act also includes limited exemptions where polygraph tests (but no

other lie detector tests) may be administered in the private sector,

subject to certain restrictions:

• To employees who are reasonably suspected of involvement in a

workplace incident that results in economic loss to the employer

and who had access to the property that is the subject of an

investigation

• To prospective employees of armored car, security alarm, and

security guard firms who protect facilities, materials, or operations

affecting health or safety, national security, or currency and other

like instruments

• To prospective employees of pharmaceutical and other firms

authorized to manufacture, distribute, or dispense controlled

substances who would have direct access to such controlled

substances as well as current employees who had access to persons

or property that are the subject of an ongoing investigation of

criminal or other misconduct involving or potentially involving loss

or injury to the manufacturing distribution or dispensing of any

such controlled substance by such employer



Even in the above cases (other than with respect to lie detectors administered

by the federal government to employees of federal contractors engaged in

national security intelligence or counterintelligence functions), an employer

may not discriminate against prospective or current employees and may not -

discharge any current employee based solely upon refusal to take a polygraph

test or analysis of a test.

If an employee voluntarily agrees to take the test, the employee may terminate

the test at any time.

An employer who violates the statute may be fined up to $10,000 and can be

sued by an employee or prospective employee to recover lost wages and

benefits, attorneys' fees, and court costs as well as possible equitable relief such

as reinstatement and promotion.

Some states impose restrictions that are greater than those set forth under

federal law. Accordingly, even if a polygraph test is lawful under federal law, it

may be prohibited under state law.

Consumer Protection Legislation HR professionals must also be aware of the legislation dealing with

consumer protection. The Consumer Credit Protection Act, the Fair Credit

Reporting Act, and the Fair and Accurate Credit Transactions Act are

important statutes.

Consumer Credit Protection Act (1968) Garnishment of an employee's wages occurs when a creditor obtains a court

order requiring the employer to attach the employee's earnings in order to pay

back the debt. The federal government and all 50 states have laws regulating the

use of garnishment. Employees must make a minimum amount of base pay in

order for a company to garnish wages.

The Consumer Credit Protection Act limits the amount of wages that can be

garnished or withheld in any one week by an employer to satisfy creditors.



Generally, the limit is equal to 25% of disposable pay (although the formula is

actually more complicated than this). The act also prohibits employers from

terminating an employee for one single indebtedness, even if that single debt

results in repeated garnishments from the creditor.

Garnishment restrictions do not apply to certain bankruptcy court orders or to

debts due for federal or state taxes. Further specific restrictions apply to court

orders for child support or alimony. The law allows up to 50% of a worker's

disposable earnings to be garnished for these purposes if the worker is

supporting another spouse or child, or up to 60% if the worker is not.

For additional information, refer to the Department of Labor's fact sheet at

www.dol.gov/whd/regs/compliance/whdfs30.pdf.

Fair Credit Reporting Act (1970) and Fair and Accurate Credit Transactions Act (2003)

Enacted in 1970, the Fair Credit Reporting Act (FCRA) calls for full

disclosure of consumer reports (including credit reports, criminal background

checks, motor vehicle history, employment verifications, and reference checks)

by consumer reporting agencies (CRAs) so that individuals subject to them can

dispute the wrongful use or interpretation of the information. The FCRA's

purpose is to protect the privacy of background information and to ensure that

the information supplied is accurate.

FCRA requirements Where a consumer report (broadly defined) is obtained for employment

purposes, the following requirements generally apply (depending on, among

other factors, when in the process the report is requested).

• Written notice and authorization

Before obtaining a consumer report about an individual for employment

purposes, an employer must clearly and conspicuously notify the individual

in writing, in a document consisting solely of that notice, that a report may

be used. The notice cannot be incorporated into an employment application.

The employer must also get the person's written authorization before asking

a CRA for a report.


http://www.dol.gov/whd/regs/compliance/whdfs30.pdf


• Pre-adverse action

Before any adverse action is taken, the employee or applicant must be

provided with a copy of the report and given a reasonable period of time, as

defined by the FCRA, to present evidence challenging the information

contained in the report. The employee or applicant must also be provided

with a copy of "A Summary of Your Rights Under the Fair Credit

Reporting Act." The employer should receive a copy of this document from

the consumer reporting agency generating the consumer report, but it can

also be found at the Federal Trade Commission's Web site (www.ftc.gov).

• Adverse action procedures

After the employer has taken adverse action based in whole or in part on the

consumer report (as well as any information that the applicant or employee

submitted in response to the pre-adverse action notice), the employer must

give the applicant or employee notice that such action has been taken. The

notice must be provided within three days of the adverse action and must


e Notice of the adverse action taken

® Name, address, and toll-free telephone number of the CRA that

furnished the consumer report

® Statement that the CRA did not make the decision to take the adverse

action and is unable to provide the consumer with the specific reasons

why the adverse action was taken

« Notice of the consumer's right to obtain a free copy of the consumer

report from the CRA within 60 days

® Notice of the consumer's right to dispute the accuracy or completeness

of any information in the consumer report furnished by the CRA

An employee or applicant may request complete disclosure by the employer

of the nature and scope of the investigation. A written response is required

in five days.

• Certifications to credit bureaus

Credit bureaus will require employers to certify that they are in compliance

with the FCRA and that they will not misuse any information in the report in

violation of federal or state laws.

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© 2011 SHRM

http://www.ftc.gov


• Penalties

Plaintiffs who prove willful noncompliance with the act can recover actual

damages between $100 and $1,000, punitive damages, and costs—including

attorneys' fees. Negligent noncompliance subjects an employer to actual

damages, costs, and attorneys' fees.

Amendment to FCRA—FACT Since April 1999, the Federal Trade Commission, which oversees

implementation of the FCRA, had taken the position that the FCRA consent and

disclosure requirements were triggered when a third party such as a law firm or

outside human resources consultant conducted a workplace sexual harassment

investigation on behalf of an employer. Under this interpretation, an employer

was required to obtain the consent of an employee under investigation for

alleged harassment prior to the investigation.

In 2003, the Fair and Accurate Credit Transactions Act (FACT Act) was

signed into law. The FACT Act amends the Fair Credit Reporting Act and

provides some relief to employers using third parties to conduct workplace

investigations.

Under the FACT Act, an employer who uses a third party to conduct a

workplace investigation no longer needs to follow the consent and disclosure

requirements of the Fair-Credit Reporting Act before commencing the

investigation if the investigation involves:

• Suspected misconduct. " ,

• A violation of law or regulations. ' ,,

• - A violation of any preexisting written policies of the employer.

The amendment frees employers to hire outside consultants, investigators, or

law firms to investigate and report on a variety of workplace issues without

first notifying targets of the investigation or obtaining their consent. However,

the employer must subsequently disclose to the employee a "summary

construing the nature and substance of the communication upon which the

© 2011 SHRM


2-51


adverse action is based." The employer need not disclose its source of

information in the summary.

The FACT Act also requires employers requesting medical information about

an applicant or employee to obtain a specific written consent describing in

"clear and conspicuous language" the use of the information.

Finally, the FACT Act has issued directives aimed at uncovering and preventing

incidents of identity theft. Users of consumer reports, including employers, must

adhere to regulations and implement procedures to deal with any notices of

address discrepancies that are received from a nationwide CRA, such as

Experian, Equifax, and TransUnion. These procedures must be designed to help

the user (employer) confirm that the consumer report and the consumer match

refer to the same individual (e.g., the employee or applicant) and that the

individual is the one for whom the user originally requested a consumer report.

Figure 6 summarizes key provisions of the privacy and consumer rights

legislation discussed here.

Legislation Key Provisions

Privacy Act Protects the employment records of federal government employees from disclosure without prior authorization

Employee Polygraph Protection Act

Makes it unlawful for employers to use polygraphs in employment decisions except for a few narrowly defined exceptions for "security-sensitive" positions and during investigations of workplace incidents; provides protection for current and prospective employees

Consumer Credit Protection Act

Limits the amount of wages that can be garnished or withheld in any one week by an employer to satisfy creditors; also prohibits employers from terminating an employee for one single indebtedness, even if that single debt results in repeated garnishments from the creditor

Fair Credit Reporting Act/Fair and Accurate Credit Transactions Act

Protects the privacy of background information and ensures that the information supplied is accurate; imposes notice requirements on employers that rely on consumer background reports

Figure 6. Major Privacy and Consumer Protection Legislation



Once again, keep in mind that states may vary in what they allow an

organization to investigate. As with other areas of legislation, you should

educate yourself about your state and local requirements.

© 2011 SHRM ® Printed on 30% post-consumer waste recycled paper.

2-53


Progress Check


1. An employer can require that a polygraph test be taken by

( ) a. an employee applying for a public relations position.

( ) b. a clerical employee who has entered treatment for substance abuse.

( ) c. an accountant whose department is under scrutiny for embezzlement.

( ) d. a recovering alcoholic who is seeking a post as a newspaper reporter.

2. Which statement best describes the provisions of the Consumer Credit Protection Act?

( ) a. Employers are prohibited from terminating an employee for one single

indebtedness.

( ) b. Employees must provide a signed release authorizing payroll deductions.

( ) c. Employers have strict legal obligations regarding disclosure of an employee's

financial information.

( ) d. Employees can set the amount of wages that can be garnished or withheld by an

employer.

3. According to provisions of the Fair Credit Reporting Act, a company may obtain credit

information about an employee before offering a promotion if the individual

( ) a. is a rehabilitated drug offender.

( ) b. is provided written notice and gives authorization.

( ) c. refuses to take a polygraph test.

( ) d. volunteers information about being in arrears for child support.

2-54 ® Printed on 30% post-consumer v/aste recycled paper.

© 2011 SHRM



1. c (p. 2-47)

2. a (p. 2-49)

3. b (p. 2-49)

© 2011 SHRM


2-55

Vorkforce Planning

ind Employment

!.3

Equal Employment Opportunity/Affirmative

Action

gfg S§5® illlilSSSlll®

m t H


• Develop, implement, and evaluate an AAP, as required.



• Quantitative analyses required to assess past and future staffing effectiveness.

• Recruitment sources for targeting passive, semi-active, and active candidates.

• Recruitment strategies.

• Diversity concepts and applications.


• .Organizational documentation requirements to meet federal and state requirements. . >

WORKFORCE PLANNING AND EMPLOYMENT Section 2 3

The basic premise of federal antidiscrimination legislation over the past four

decades is that employers should not make employment decisions on the basis

of an applicant's or employee's race, gender, ethnicity, religion, age, color,

military/veteran status, or disability status. Rather, employment decisions—

including hiring, work assignments, compensation, promotions, and

terminations—must be job- and business-related.

Specific information on federal antidiscrimination legislation referenced in this

section can be found in Section 2-1 in this module, "Key Legislation Affecting

Employee Rights."

Protected Classes Within the context of equal employment opportunity (EEO), the term protected

class describes people who are covered under a particular federal or state

antidiscrimination law. Groups protected by EEO designations and federal

antidiscrimination laws include but are not limited to women, Blacks/African-

Americans, Hispanics/Latins, American Indians/Alaska Natives, Asians, Native

Hawaiians/other Pacific Islanders, other groups related to national origin, people

age 40 or older, the disabled, veterans, and religious groups.

Caucasian males over age 40 are also protected from discrimination. However,

antidiscrimination legislation was passed primarily to correct a history of

unfavorable treatment of women and minority group members.

On May 23, 2007, the EEOC issued "Enforcement Guidance: Unlawful

Disparate Treatment of Workers with Caregiving Responsibilities." Its stated

purpose is to assist investigators, employees, and employers in assessing

whether a particular employment decision affecting a caregiver might

unlawfully discriminate on the basis of prohibited characteristics under Title VII

of the Civil Rights Act of 1964 or the Americans with Disabilities Act of 1990.

Although the federal EEO laws do not prohibit discrimination against caregivers

per se, nor does this guidance expand Title VII protections, the EEOC believes

that there are circumstances in which discrimination against caregivers might

constitute unlawful disparate treatment under these laws.

©2011 SHRM 2-58 ^^^ Printed on 30% post-consumer waste recycled paper.


This enforcement guidance is the EEOC's interpretation. It differs from final

rules or regulations, which have the binding force and effect of the law.

Further information about this enforcement guidance can be found at

www.eeoc.gov/policy/docs/caregiving.html.

Recognizing Discrimination Determining whether a manager's decision about an employee is discriminatory

or job-related is not always easy. There are two primary types of discrimination:

disparate treatment and disparate impact. Discrimination may also occur when

employers perpetuate certain types of past policies.

Disparate treatment Disparate treatment discrimination occurs when protected classes are

intentionally treated differently from other employees or are evaluated by

different standards.

Examples: • A manager who automatically rejects Mexican-American

applicants on the grounds that they might be illegal aliens • Sexual harassment, where a manager refuses to promote an

employee who will not engage in a sexual relationship with him or her

• Having different entry requirements for women than for men • Inconsistent management practices and/or enforcement of

company policies based on race (if, for example, white employees who violate company policy are not disciplined but black employees who violate the same policy are disciplined)

Adverse or disparate impact As mentioned in Section 2-1, adverse impact (or disparate impact) results

when rules applied to all employees have a different and more inhibiting effect

on a protected class than on the majority. An example would be nonessential

education requirements for certain jobs that impact minority groups looking for

work who have been limited in their access to educational opportunities.

Example: An organization hires only high-school graduates for custodial positions.


http://www.eeoc.gov/policy/docs/caregiving.html


Disparate impact is usually unintentional. Employment screening requirements

(such as height and weight requirements or disqualification based on arrest

records) that appear neutral but have a discriminatory effect on a protected class

are considered to have adverse impact. HR professionals need to look carefully

at how job qualification criteria and tests are applied and used to make certain

that they don't intentionally or unintentionally have a disparate impact on

women, minorities, or other protected classes. Figure 7 compares disparate

treatment and disparate impact.

Disparate Treatment Disparate Impact

Direct discrimination Indirect discrimination

Unequal treatment Unequal consequences or results

Intentional Usually unintentional

Prejudiced actions Neutral actions

Different standards Same standards but different consequences

Figure 7. Disparate Treatment and Impact Compared

Present effects of past discrimination A third way employers unlawfully discriminate is by perpetuating the effects of

past policies that were discriminatory. For example, giving preferential

treatment to applicants referred by current employees may appear neutral, but it

can maintain the current racial or ethnic mix of an organization, making it

harder for non-Caucasians or others to get hired.

Precedent-Setting Discrimination Cases Some of the most important precedent-setting discrimination cases include the

following.

Griggs v. Duke Power (1971) The Griggs v. Duke Power case arose when Willie Griggs applied for a coal-

handler position with the Duke Power Company. His request was denied, based

on the fact that he was not a high-school graduate and on the results of two

preemployment tests that were also requirements of the job. Griggs claimed that

these job requirements were discriminatory because they did not relate to job

success and had a negative impact on protected classes.



Griggs's position prevailed, and the following two critical points were

established.

• Employment discrimination need not be overt or intentional to be

illegal.

Statistical evidence of adverse impact may be used by employees to support

a claim of discrimination. However, under the Ricci v. DeStefano Supreme

Court decision (which is covered later in this section), an employer's fear of

triggering a discrimination complaint where the employer's administered

test(s) show adverse impact is, alone, not sufficient reason for an employer

to ignore the results of a test that accurately meets job-related requirements.

Ignoring pre-stated testing requirements and obtaining accurate candidate

test results but then not using those test results could create illegal disparate

treatment (intentional discrimination) against another group based on their

race.

• Employment practices can be illegal even when applied to all

employees.

For example, in the Griggs case one requirement for transfer or promotion

applied to all employees was fulfilling the requirements for a high school

education. But black students were given an inferior education in many

segregated schools, and the requirement—while seemingly neutral—had a

more significant adverse impact on black employees. Consequently, the

employer was required to prove that the requirement was directly job-

related—i.e., bore "a demonstrable relationship to successful performance of

the jobs for which it was used."

McDonnell Douglas Corp. v. Green (1973) While the Griggs case established criteria for disparate impact, the McDonnell Douglas Corp. v. Green case established criteria for disparate treatment. Green

was employed as a mechanic at McDonnell Douglas, working at a plant that

employed 30,000 people. In 1964, he was laid off during a general workforce

reduction. While unemployed, he was involved in protest activities at the

company that did not please the company. He participated in a lock-in, placing a

chain and padlock on a factory door so no one could enter or leave. He and a

group of employees also parked their cars across the gates of the plant so no one

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could enter or leave. When the company advertised for mechanics, Green

reapplied. When the company rejected him, Green sued, and he prevailed by

arguing that the company rejected him because of his race and his involvement

in the civil rights movement.

In the Green case, the Supreme Court ruled that individuals can show a prima

facie case of disparate treatment in a hiring situation if they can demonstrate

that they:

• Belong to a racial minority or other protected group under Title VII.

• Applied for a job for which the employer was seeking applicants.

• Were rejected despite being qualified.

• Were rejected and yet the employer kept looking for people with their

qualifications.

The term prima facie translates from Latin as "on first view" or "at first

appearance." In an EEO case (such as the Green case), when a plaintiff presents

evidence of a prima facie case, the employer must articulate a legitimate,

nondiscriminatory reason for its decision. Once an employer does that, the

employee must prove that the reason is a pretext for discrimination. Statistics of

underutilization have established a pretext, as have jokes and slurs and evidence

of inconsistent treatment.

Albemarle Paper v. Moody (1975) The Albemarle Paper Company required job applicants to pass different

employment tests, some of which were believed to be poor predictors of job

success. In 1975, the U.S. Supreme Court ruled in favor of the plaintiff, stating

that items used to validate employment requirements must themselves be job-

related. Any test used for promotion or selection of employees (including

performance appraisals) must be a valid predictor for a particular job. This

ruling strengthened the principles in Griggs and placed great importance on the

Uniform Guidelines on Employee Selection Procedures.

Washington v. Davis (1976) In this case, applicants for the Washington, D.C., police department were

required to pass an examination designed to test verbal ability, vocabulary,

reading, and comprehension. A group of African-American recruits filed suit

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© 2011 SHRM


alleging that the test bore no relationship to job performance and excluded a

disproportionately high number of African-American applicants. The Supreme

Court found that the disproportionate impact of the test, which was neutral on

its face, did not warrant the conclusion that the test was a purposely

discriminatory device, and the Court concluded that the police department's

efforts to recruit African-American officers as well as the test's valid

relationship to the training program negated any inference of racial

discrimination.

St. Mary's Honor Center v. Hicks (1993) In St. Mary's Honor Center v. Hicks (1993), a correctional officer formerly

employed at a halfway house brought a Title VII action alleging that his

demotion and discharge were because of his race. In deciding Hicks, the

Supreme Court clarified the role of the burden-shifting analysis used in

employment discrimination cases.

As noted above in the discussion of McDonnell Douglas Corp. v. Green, if the

plaintiff creates a prima facie case of discrimination and the employer is able to

articulate a legitimate, nondiscriminatory reason for the actions it has taken, the

plaintiff can still prevail if he or she can establish that the employer has offered

a false reason as a pretext for unlawful discrimination. In Hicks, the Court ruled

in favor of the employer, suggesting that it is not enough for the plaintiff to

prove that the employer lied. The plaintiff still has the burden of proof and must

show that the lie was to cover up illegal discrimination. However, as a practical

matter, where an employer lies, a jury is likely to conclude that the lie was to

cover up illegal discrimination.

McKennon v. Nashville Banner Publishing Co. (1995) In McKennon v. Nashville Banner Publishing Co., the Supreme Court

considered the validity of a defense referred to as the "after-acquired evidence

defense." Before McKennon, this defense enabled an employer to escape

liability if it could show that, after terminating an employee (even for unlawful

reasons), it learned that the employee had previously engaged in conduct that, if

discovered, would have led to termination.

The Court held that evidence of misconduct acquired after the decision to

terminate cannot free an employer from liability, even if the misconduct would

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have justified terminating the employee. Accordingly, after-acquired evidence

will not be a complete defense to a claim brought under any of the federal

antidiscrimination laws. This does not mean, however, that after-acquired

evidence is useless. The Court went on to state that in some cases, such

evidence still may be used to cut off certain damages, including damages

suffered after the prior misconduct was discovered. Such evidence may also be

considered when awarding back pay.

Class-action racial discrimination lawsuit against Coca-Cola (2000) In 1999, four past and current African-American employees of the Coca-Cola

Company filed a class-action lawsuit in federal court charging the world's

largest soft-drink maker with discrimination. The claimants, representing more

than 2,000 former and current African-American employees who had held

salaried positions since 1985, accused the company of paying African-

Americans less, offering them fewer promotions, and giving them lower

performance evaluation scores than Caucasians.

In May of 2001, the U.S. District Court in Atlanta approved a $192.5 million

agreement to settle the class-action racial discrimination lawsuit. The

settlement, arrived at with the help of a court-ordered mediator, provided an

estimated average of $38,000 each to the claimants.

The agreement also established several policies and procedures to improve

Coca-Cola's diversity efforts. An independent task force was given

responsibility for monitoring the company's progress and making

recommendations that are enforceable by the court. Coca-Cola's board of

directors has specific responsibility for ensuring that the company stays on track

in terms of the settlement and meeting its diversity goals.

EEO Reporting Requirements Ideally, EEO laws and affirmative action programs combine to achieve equal

employment opportunities—to give individuals an equal chance to enjoy the

benefits of employment. However, complying with EEO laws and regulations

requires employers to maintain detailed records on their workforce (including

the number of applicants each year by race and gender).

©2011 SHRM 2-64 ^^^ Printed on 30% post-consumer waste recycled paper. ®


Annual Reporting Form Employers with 100 or more employees and federal contractors with at

least 50 employees and a federal contract of $50,000 during a 12-month

period are required to file an annual report. The report is due by September

30 of each year. Accurate record keeping is important, because it allows

employers to prove compliance and makes it easier to conduct internal

investigations.

The annual reporting form includes a breakdown of the workforce by race,

ethnicity, and gender for nine job categories:

1. Officials and managers

IA. Executive/senior-level officials and managers

IB. First-/mid-level officials and managers

2. Professionals

3. Technicians

4. Sales workers

5. Office and clerical

6. Craft workers (skilled)

7. Operatives (semiskilled)

8. Laborers (unskilled)

9. Service workers

The annual reporting form varies by industry. The different industry forms


• EEO-1 —Private business

• EEO-2—Joint apprenticeship programs

• EEO-2,A—Unilateral apprenticeship programs

• EEO-4—State and local governments

• EEO-5—Public elementary and secondary schools

• IPEDS—Integrated Post-Secondary Education Data System (e.g.,

colleges and universities; formerly the EEO-6 report form)

Posters and officially approved notices stating that the organization is an

equal opportunity employer and does not discriminate must be put in

prominent locations where they can be seen by employees.



In January 2006, the Li HOC issued a rule revising the Employer Information

i Report (EEO-1). In addition to dividing officials and managers into (a)

executive/senior-level officials and managers and (b) first-/mid-level officials

and managers, the changes include

• Adding a two-part question whereby employees are first asked to report

their Hispanic or Latino (ethnic) status and second to report the race or

races they consider themselves to be (only if they have not been identified

as Hispanic or Latino). Hispanic is an ethnicity rather than a racial

category. It is the only ethnicity currently considered a protected status for

reporting purposes.

• Adding a new category for those identifying two or more races.

• Creating two separate categories of the current Asian/Pacific Islander

group (a) Asian and (b) Native Hawaiian or Other Pacific, Islander.

More detailed information about the Employer Information Report (EEO-1) and

the forms are available at www.eeoc.gov/employers/reporting.cfm.

Legal requirements for the retention of employee files and other employment-

related records are discussed in Section 2-11 in this module, "Employee

Records Management." Stages of an EEOC complaint investigation are covered

in Section 5-1 of Module 5: Employee and Labor Relations.

Applicant Flow Data No data on protected classes is permitted on application forms or other

preemployment records. Yet, under EEO regulations, employers may be

required to show that they do not discriminate against minorities or other

protected classes in their hiring practices. Furthermore, employers cannot use

lack of data as an excuse for noncompliance with EEO regulations.

EEO regulations generally define job applicant to include anyone who

expresses an interest in employment, regardless of whether that person meets

the employer's minimum qualifications for the job.

©2011 SHRM 2-66 ^ ^ ^ Printed on 30% post-consumer waste recycled paper.

http://www.eeoc.gov/employers/reporting.cfm


In March of 2004, the EEOC addressed the issue of Internet and electronic job

applicants, suggesting that three conditions had to be met for an individual to

be considered an applicant when using the Internet or electronic means to

express interest in a job:

• The employer must have taken steps to fill a particular job.

• The individual must have followed the employer's standard application

procedure. •

• The individual must have expressed interest in a particular position.

After the issuance of these proposed regulations, the EEOC committed to a

further study of Internet applicants, with the anticipation that additional and/or

revised permanent regulations would be issued. However, on March 17, 2008,

the EEOC voted to not finalize the proposed requirements and to discontinue

any effort to further define the term "job applicant" for Internet and related

electronic technologies.

In October of 2005, the Department of Labor's Office of Federal Contract

Compliance Programs (OFCCP) issued a final regulation and defined an

Internet applicant, identifying four basic criteria:

• The job seeker has submitted an expression of interest in employment

through the Internet (or related electronic data technology).

• The employer considers the-job seeker for employment in a particular

position., ,

• • ' The individual's expression of interest indicates that the individual

•„- . possesses the basic qualifications for the position. '

• - The individual at no point in the contractor's or subcontractor's selection

~ process prior .to receiving an offer of employment from the contractor or

subcontractor removes himself or herself from further consideration or '

otherwise indicates that he or she is no longer interested in the position.

The Department of Labor's regulations apply only to federal government

contractors and subcontractors. However, the EEOC recommends that

employers seeking guidance on who is an Internet applicant for purposes of

Title VII look to the OFCCP rule, even if the employers are not federal

contractors or subcontractors covered by Executive Order 11246.

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Additional information about Internet applicant regulations can be found at

www.dol.gov/ofccp.

Federal government contractors and subcontractors must be able to identify,

where possible, the gender, race, and ethnicity of each individual who satisfies

the definition of applicant. Where tests and other selection procedures are used

as the basis for employment decisions such that the Uniform Guidelines on

Employee Selection Procedures apply, covered employers are expected to have

similar gender, race, and ethnicity information available for affected individuals

so that they can assess statistically whether such selection procedures have an

adverse impact.

Data about an applicant's race, ethnicity, and gender can be obtained in one of

two ways:

• A request that applicants complete a voluntary self-identification form

(either a paper or electronic form) that provides gender, race, and ethnic data

• A visual survey of applicants

It should be noted that the self-identification request should be done first; a

visual survey is a second, but less preferable, alternative.

Requests of the applicants may include providing a tear-off form as part of the

employment application for individuals who complete the application as their

expression of interest. For individuals who submit their resumes, employers

should make a reasonable effort to obtain demographic information by sending

out a voluntary self-identification form for the individual to complete and return

to the employer or by having an electronic process to obtain the information. In

either case, compliance must be voluntaiy.

The information must be maintained separately from the application form

and/or resume and must not be shared with managers or supervisors who are

involved in making the selection decision.

In planning for future staffing needs, HR professionals must understand the

ever-changing workforce demographics in their external environment. Flexible

and creative ways will be necessary to attract, select, and retain employees from

a diverse workforce to best support organizational strategic goals.




Affirmative Action Plans As noted earlier, affirmative action (AA) is a practice in which employers

identify conspicuous imbalances in their workforce and take positive steps to

correct underrepresentation of protected classes. Affirmative action plans (AAPs)

are written plans that focus on the hiring, training, compensating, promoting, and

terminating of underrepresented groups.

AAPs have a narrative component and a statistical component. The statistical

component captures certain statistical analyses of the company's workforce. The

narrative component describes a company's programs, policies, and procedures

designed to ensure that all individuals have equal opportunities in all employment

decisions and practices; it also describes the components of the company's

affirmative action program and good-faith efforts and action-oriented programs

designed to address any identified problem areas.

Federal contractors/subcontractors with certain contract values and workforce sizes

are required to develop, implement, and maintain AAPs while providing goods and

services to the federal government. Many states also require state government

contractors to prepare AAPs.

Key Sections of an AAP The following information provides an overview of the key sections of AAPs

according to the OFCCP's revised 60-2 regulations. Final regulations are found in

41 CFR Part 60-2 and Title 29, Part 471: "Obligations of Federal Contractors and

Subcontractors; Notification of Employee Rights Under Federal Labor Laws."

First we'll look at the sections of the statistical component of the AAP: the

organizational profile, the job group analysis, and the availability analysis.

Organizational profile The organizational profile depicts the staffing pattern of the establishment to

determine if barriers to equal employment opportunity exist within any

organizational unit. (An organizational unit is any discrete component of an

organization in which there is a level of supervision responsible and accountable

for the selection, compensation, etc., of employees within the unit.) The

organizational profile provides a "vertical slice" of an organization's structure.

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W O R K F O R C E P L A N N I N G A N D E M P L O Y M E N T Section 2 3

Contractors can prepare either an organizational display or the traditional

workforce analysis as their organizational profile.

An organizational display provides a graphical presentation of the

organizational units, including their interrelationships. According to 41 CFR 60-

2.11, the organizational display should provide detail on:

• The name of the unit.

• The job title, gender, race, and ethnicity of the supervisor (if there is one).

• The total number of female (F) and male (M) incumbents.

• The total number of male and female incumbents in each of the following

groups: African-Americans (AA), Hispanics (H), Asians (A)/Pacific

Islanders (PI), and American Indians (AI)/Alaskan Natives (AN).

Figure 8 shows a sample organizational display. Supervisors are included in the

gender and race/ethnic count.

Organizational Unit Name ' Females superv isors Kace / Sex and Job Title

Employees Minorities. Total w AA H A/PI Al/ AN Tota l w AA H A/PI Al/

AN Executive Office AM. Chief Executive Officer 3 2 1 1 0 0 0 0 2 0 0 0 2

Engineering Department WM, Director of Engineering 22 5 16 12 2 1 1 0 6 5 1 0 0 0

Marketing Department WF, Director of Marketing 43 5 19 17 1 1 0 0 24 21 1 1 1 0

Facility Totals 68 12 36 30 3 2 1 0 32 26 2 1 1 2

Source: Provided by Cornelia Gamlem, GEMS Group Ltd.

Figure 8. Sample Organizational Display

The workforce analysis is a list of job titles ranked from lowest- to highest-

paid within an organizational unit. The regulations require the name of the unit

and, for each job title in the unit (including all managerial jobs):

• Wage rate or salary range.

• Total number of male and female incumbents.

• Total number of male and female incumbents in each of the following

groups: African-Americans, Hispanics, Asians/Pacific Islanders, and

American Indians/Alaskan Natives.

Figure 9 shows a sample workforce analysis.-



Workforce Analysis—Finance and Administration Department (as of 12-31-20xx)

Job Title EEO-1 Category

Salary Grade

Total Employees

Total Minorities Total W

Males • H A/PI Ml

AN Total

• W

Females s u m s M i A/PI

H i Ml AN

Receptionist 5 S1 2 1 1 1 0 0 0 0 1 0 0 1 0 0

Acct Rec Clk

5 S2 6 1 2 2 0 0 0 0 4 3 1 0 0 0

Payroll Clerk

5 S2 1 0 1 1 0 0 0 0 0 0 0 0 0 0

Acct Pay Clk

5 S2 5 1 0 0 0 0 0 0 5 4 0 0 1 0

Fin Analyst 2 P3 5 1 0 0 0 0 0 0 5 4 0 0 1 0

Buyer 2 P2 1 1 0 0 0 0 0 0 1 0 0 1 0 0

Accountant 2 P2 9 1 0 0 0 0 0 0 9 8 1 0 0 0

Acct Mgr 1 M1 1 0 0 0 0 0 0 0 1 1 0 0 0 0

Controller 1 M2 1 0 1 1 0 0 0 0 0 0 0 0 0 0

Department Total 31 6 5 5 0 0 0 0 26 20 2 2 2 0

Percentage of Total 100% 19.4% 16.1% 16.1% 0 0 0 0 83.9% 64.5% 6.5% 6.5% 6.5% 0


Figure 9. Sample Workforce Analysis

The EEOC's changes in reporting ethnic and racial categories were noted earlier

in this section, in the discussion of the EEO-1 annual report. The OFCCP has

issued guidance on the use of race and ethnic categories in affirmative action

programs, stating that it will allow contractors whose systems have been

updated to conform with the EEOC's new racial and ethnic categories to use

this data in their affirmative action programs. Contractors also are permitted to

prepare their AAP using the racial and ethnic categories provided under

OFCCP's current regulations.

Job group analysis The job group analysis lists all job titles that comprise each job group. Jobs are

grouped according to whether they have similar content and responsibilities,

wage rates, and opportunities for advancement.

Where the organizational profile shows a vertical slice of jobs within a

department, a job group analysis shows a horizontal slice of the organizational

structure. A job group analysis shows jobs by functional alignment, regardless

of departmental affiliation.

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Figure 10 provides a sample job group analysis.

Job Group Analysis (Job Group: 2A—Engineering Professionals)

, Total Total Total 1 e Employees Females Minority

Sr. Electrical Engineer 1 1 0

Electrical Engineer 9 9 1

Sr. Network Engineer 1 1 1

Network Engineer 8 2 3

Sr. Software Engineer 1 0 0

Software Engineer 6 4 1

Mechanical Engineer 5 4 1

Job Group Total 31 21 7

% of Total 100% 67.74% 22.58%


Figure 10. Sample Job Group Analysis

An organization must separately state the percentage of minorities and the

percentage of women it employs in each job group. If a contractor has a total

workforce of fewer than 150 employees, the contractor may prepare a group

analysis that utilizes EEO-1 categories as job groups.

Availability analysis 41 CFR 60-2.14 requires that an organization consider at least two factors,

internal availability and external availability, in determining the theoretical

availability of minorities and women for the established job groups.

Specifically, an organization must examine the percentage of minorities and

women:

• Who have the requisite skills in the reasonable recruitment area for each

job group—those actually employed in occupations matching an

organization's job group functions in a larger recruiting area.

• Who are promotable, transferable, and trainable within the facility—those

internal employees who could (with the appropriate training) be promoted

or transferred during the affirmative action program year.



The organization must compare the percentages of minorities and women in

each job group with the availability that was determined for the job group.

When the difference is less than would reasonably be expected (traditionally

referred to as underutilization), the contractor must establish placement

goals.

The OFCCP allows contractors to calculate this comparison using a variety

of statistical methods, including:

• The "any difference rule."

• The "80% rule" (the "four-fifths rule").

• The "two standard deviations analysis" (currently the recommended test

method) or other test of statistical significance.

Note that a detailed explanation of how to perform these analyses is beyond

the scope of this module. Such information may be found in many statistical

texts.

The computations in this section of the AAP provide a way to establish a

benchmark of qualified, available candidates for each job group.

Organizations can then measure their own job group make-up against this

benchmark.

The narrative component of the AAP includes descriptions of placement

goals and action-oriented programs, a designation of responsibility,

identification of problem areas, and a description of the internal audit and

reporting system.

Placement goals Placement goals must be set when the percentage of minorities or women in a

job group is less than reasonably expected given their availability percentage

in that job group. Placement goals equal the availability percentage and serve

as objectives or targets that organizations can meet through good-faith efforts

and action-oriented programs. However, organizations are not to set quotas.

Figure 11 shows a sample form that compares incumbency to availability and

sets goals.


W O R K F O R C E P L A N N I N G A N D E M P L O Y M E N T Section 2 3

Job Group Female

Incumbency %

Female Availability

%

Establish Goal?

Placement Rate Goal

Minority Incumbency

%

Minority Availability

%

Establish Goal?

Placement Rate Goal

1A Executives 16.67% 21.22% Yes; 21.22% 10.56% 21.00% Yes; 21.00%

1B Managers 30.77% 19.29% No 15.38% 21.37% Yes; 21.37%

1C Supervisors 33.33% 24.75% No 0% 12.36% Yes; 12.36%

2A IT Professionals

25.00% 31.06% * 27.19% 22.65% No

2B Engineering Professionals

61.36% 58.42% No 34.09% 34.54% *

5A Administrative Support

93.75% 57.01% No 68.75% 37.33% No

* The 80% rule was followed.

Source: Adapted from Cornelia Gamlem and Thomas H. Nail. Roadmap to Success: Briefing Managers About Affirmative Action Results. Herndon, Virginia: GEMS Publications, 2004.

Figure 11. Sample Form for Comparing Incumbency to Availability and Setting Placement Rate Goals

Act ion-or iented programs

Plans must be set forth to correct any problems found in achieving placement

rate goals and correcting identified problem areas. For example, an action plan

might list the percentage of women in a job group, projections for internal

turnover, plans for internal posting processes, and any plans for recruitment of

external candidates to obtain a slate of candidates that includes qualified

women. The action plan should also specify who would be responsible for

implementing and monitoring the specific action steps.

Designation of responsibi l i ty

In this section, an organization must establish who will be responsible for the

overall AAP. The assumption is that the person in charge will have the

authority, resources, and organizational support necessary to implement the

AAP. HR often assumes this responsibility.

Identif ication of problem areas

Periodically, the organization is expected to perform in-depth analyses of its

employment processes by organizational areas and job groups to identify any

impediments to equal employment opportunity.

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This includes evaluation of:

• The workforce by organizational unit and job group to determine whether there

are problems of minority or female utilization.

• Personnel activities (including applicant flow, hires, terminations, and

promotions) to determine whether there are selection disparities.

• Compensation systems to determine whether there are gender-, race-, or

ethnicity-based disparities.

• Selection and other personnel procedures to determine whether they result in

disparities in the employment or advancement of minorities or women.

• Any other areas that might impact the success of the affirmative action program.

Internal audit and reporting system The AAP must describe the internal audit and reporting systems the organization

has in place to measure the plan's effectiveness. Such systems should include:

• A process for monitoring personnel activity.

• Scheduled internal reporting.

• Scheduled management review of report results.

• A procedure and/or practice for advising management of program effectiveness

and making recommendations for program improvement.

Figure 12 provides a checklist of steps for an internal audit and reporting system.

Checklist of Internal Audit and Reporting System Procedures

0 Provide managers periodic updates with respect to progress toward affirmative action goals.

0 Monitor record retention practices. 0 Maintain and monitor applicant flow by job

group, identifying applicants for employment and, when possible, by gender and race.

0 Maintain and monitor records of new hires, identifying each person by name, hire date, job classification, department, gender, and race.

0 Maintain and monitor records of compensation practices and systems.

Source: Adapted from Cornelia Gamlem and Thomas H. Nail. Roadmap to Success: Five Steps to Putting Action into Your Affirmative Action Plan. Hemdon, Virginia: GEMS Publications, 2004.

Figure 12. Elements of an AAP Internal Audit and Reporting System

0 Maintain/monitor records of transfers and promotions, identifying each individual by name, transfer/promotion date, job classification (old and new), department number (old and new), gender, and race.

0 Maintain/monitor records of terminations, identifying each person by name, termination date, job classification, department, gender, race, and reason for termination.

0 Maintain reports of education and training activities in which each employee has participated.



Additional AAP Considerations Organizations are encouraged to formally publicize their EEO policy. Internally,

the policy may be published in an employee handbook and posted on company

bulletin boards. Externally, an organization can include the policy in employment

advertisements (stated as "An Equal Opportunity Employer"), purchase orders, etc.

The OFCCP encourages (but does not require) organizations to actively support

community action programs designed to improve employment opportunities for

minorities and women, such as programs that assist underprivileged minority

youth (e.g., establishing a scholarship fund) or supporting organizations

committed to developing skills for minorities and women.

Required Compliance with AA The OFCCP is charged with enforcing federal laws and regulations on EEO

and affirmative action. As such, the OFCCP conducts compliance evaluations

(or audits) to ensure that all affirmative action regulatory requirements are

being met.

Who may be audited Of course, the OFCCP does not audit every federal contractor every year. An

organization may be selected for a compliance evaluation for any one of the

following reasons:

• As a random selection from a database (akin to the IRS randomly selecting

income tax returns for audits)

• In response to a sudden surge of discrimination complaints

• In response to pressure from community constituency groups (e.g.,

community groups representing minorities or women)

• As a member of the construction industry (an industry targeted by the

OFCCP for compliance evaluations due to a history of past affirmative

action violations)

• As a first-time federal contractor who must undergo a pre-award review

• A large-dollar contract (usually over $ 1 million) that requires a pre-award

review

• In response to the discretionary selection of the local district or regional

OFCCP directors

• In response to an EEO-1 report that is judged to be out of limits

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All federa l cont rac tors should be p repa red to be aud i t ed at a n y t ime .

How an audit is conducted

If an o rgan iza t ion is audi ted by the O F C C P , it m u s t be p r e p a r e d to p rov ide deta i l s

and d o c u m e n t a t i o n o f its a f f i r m a t i v e ac t ion p r o g r a m and its e m p l o y m e n t po l ic ies

and prac t ices , such as hir ing, t e rmina t ions , p r o m o t i o n s , and c o m p e n s a t i o n .

Par t o f a c o m p l i a n c e eva lua t ion is a yes /no check fo r c o m p l e t i o n . H o w e v e r , o the r

c o m p o n e n t s o f the aud i t a re sub jec t ive j u d g m e n t s o f g o o d - f a i t h e f fo r t s and

nond i sc r imina t ion in all e m p l o y m e n t pract ices .

A c o m p l i a n c e eva lua t ion m a y inc lude any one of th ree d i f f e r e n t audi ts , s ingly or in

combina t ion . A br ie f o v e r v i e w of the types of aud i t s is s h o w n in F igu re 13.

Type of Audit Description

Compliance review

• Consists of a comprehensive analysis and evaluation of the hiring and employment practices of a contractor, the written AAP, and the results of AA efforts. This is the most comprehensive of the various audits.

• Starts with a desk audit. A desk audit takes its name from the fact that this review and analysis is typically done at the desk of the EEO compl iance officer (CO) assigned to conduct the audit.

• May proceed to an on-site review to further analyze areas (e.g., unresolved problem areas, support ing documentation) followed by an off-site analysis of the information gathered.

Off-site review • Consists of analysis and evaluation of the AAP (or any part thereof) and supporting documentat ion. This is typically done at the office of the CO with documents provided by the contractor.

• Includes review of personnel policies, AAP action plans, and achievements.

Focused review • Consists of an on-site review focused on or restricted to one or more components of an A A P or its implementation.

• As warranted, includes review of portions of employment practices or policy implementation.

Figure 13. Types of Compliance Evaluation Audits



The OFCCP has developed the Standard Compliance Review Report (SCRR),

which provides instructions on how an audit is conducted. Intended to bring a

degree of standardization to the process of compliance evaluations, the SCRR

provides a checklist of subjects normally covered, such as:

• 1-9 forms.

• Payroll records.

• Job descriptions.

• Interview and hiring records.

• Personnel files.

• AAP support files (e.g., documentation of good-faith efforts).

• Purchase order and vendor notification letters (e.g., for inclusion of potential

AAP responsibilities, the required EEO clause, and clauses regarding

employee rights under federal labor laws).

• Disability and accommodation request files.

What happens when the audit is completed The OFCCP sends an organization written correspondence detailing the results

of the compliance investigation. If the audit involved an on-site visit, the CO

will have already conducted an exit conference previewing key findings.

In the revisions to the 41 CFR Part 60-2 regulations, "Letters of Compliance"

and "Letters of Commitment" were replaced with a closure letter called the

"Compliance Evaluation Letter for Minor or No Violations." This written

correspondence covers whether or not any violations were found and/or a

discussion of minor violations.

If more serious violations are discovered, the Department of Labor will issue a

conciliation agreement. Conciliation agreements are contracts to remedy the

more-serious out-of-compliance conditions. Examples of serious violations may

be incidents of discrimination, lack of reasonable effort or good-faith

demonstrations, improper documentation, and failure to comply with past

agreements with the OFCCP.

Violations necessitate follow-up by the compliance officer at specified

frequencies (e.g., possibly every six months for up to two years). Legal

enforcement proceedings (e.g., fines or debarring from federal contracts for up

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to five years) may be brought against an organization that refuses to come into

compliance for any cited violations. An organization considered in compliance

may not be audited by the OFCCP for another two years.

Additional information about affirmative action plan requirements and the Office of

Federal Contract Compliance Programs can be found at www.dol.gov/ofccp.

Glass Ceiling Reviews/Corporate Management Reviews The term glass ceiling generally describes the phenomenon of minorities and

women being blocked by an invisible barrier from attaining senior executive

positions.

Affirmative action has worked well to introduce minorities and women, the

disabled, and veterans to middle levels in contractor organizations. Yet, the

glass ceiling generally represents discrimination—unintentional or intentional—

against minorities and women from reaching those truly senior organizational

levels. To correct this situation, the OFCCP is charged with the review of

contractors' programs at executive levels.

Glass ceiling reviews (also referred to as glass ceiling audits) are officially

called corporate management reviews. They have many significant differences

from compliance evaluations. For example, a glass ceiling review is typically

conducted only at an organization's corporate headquarters. (In some instances,

it may be extended if it is determined that problems exist outside of the

corporate headquarters.)

Also, glass ceiling reviews focus primarily on the decision making of CEOs and

senior executives rather than on job group analysis. As such, they are normally

very sensitive, private investigations.

Glass ceiling reviews are done concurrently with an ordinary compliance

evaluation. However, for credibility purposes, a team of OFCCP management

personnel, separate from the compliance officer conducting the normal

compliance review, completes the corporate management review. (COs rarely

have any senior-level experience.)




Some of the subject areas addressed during corporate management reviews

include:

• How management positions are filled (e.g., employee referrals, executive

search firms).

• Succession planning for internal candidates.

• Promotion and transfer processes at senior levels.

• Movement within headquarters.

• Executive performance appraisals.

• Developmental assignments for executives.

• Training offered to executive candidates.

• Mentoring and networking programs.

• Executive compensation packages.

• Executive recognition programs.

• Termination policies and procedures for executives.

Voluntary Compliance with AA What about organizations that are not mandated to complete a formal AAP?

In the eyes of the Supreme Court, voluntary AAPs are viewed as legal.

However, to be acceptable, any voluntary AAP should be based on the

following guidelines:

• The purpose of the plan should be to remedy specific and identifiable

effects of past discrimination.

• There should be definite underutilization of women and/or minorities in

the organization that the plan seeks to rectify.

• The plan should not unnecessarily interfere with the job interests and

rights of male and nonminority employees; result in their discharge,

layoff, or replacement; or create an absolute bar to their promotions.

• Once an AA goal has been achieved, the plan should be amended to

eliminate that goal.

• All candidates chosen for positions should be qualified.

• The plan should include organizational enforcement mechanisms as well

as a grievance procedure.

For a more detailed discussion with regard to the restrictions that apply to

voluntary affirmative action/diversity programs, see the analysis of the

Weber and Johnson cases below.

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Fairness Issues While EEO laws do not prohibit unfairness per se, the purpose of EEO and

affirmative action plans is to make the workplace more fair to all people. The

question naturally arises, What about people not specifically covered by EEO

laws? Is it fair to discriminate in reverse in order to favor groups who may or

may not be as qualified for a certain job? Under what circumstances can an

employer hire a 30-year-old Caucasian male, for example, instead of a Hispanic

female or a 50-year-old male with HIV? What is fair?

Recent court decisions have taken a conservative stance on the general legality

of government affirmative action programs. The Supreme Court has held that

federal set-aside programs allocating benefits on the basis of race have to be

justified by the strictest of constitutional standards, generally understood to

require proof of past discrimination. The Court has consistently ruled that

employers can give temporary preference to protected classes.

Reverse Discrimination Several key cases have dealt with the issue of reverse discrimination.

Regents of the University of California v. Bakke (1978) In response to a challenge to a medical school admissions plan that guaranteed a

certain number of seats to minority applicants, the Supreme Court ruled that

colleges and universities could legitimately consider race as a factor in the

admissions process.

United Steelworkers v. Weber (1979) In the private sector, plaintiff Brian Weber charged reverse discrimination when he

was denied admission to a training program although he had more seniority than

some African-American workers who were admitted to the program. Weber lost.

In upholding the affirmative action plan in Weber, the Supreme Court emphasized

that:

• The purposes of the plan mirrored those of Title VII—to break down racial

segregation and hierarchy.

• The plan did not attempt to achieve a racial balance but only to break down the

manifest racial imbalance.

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• The plan was not indefinite in duration but rather only a temporary measure to

break down the manifest racial imbalance.

• The plan did not unnecessarily limit the interests of white employees by either

requiring their discharge to be replaced by black employees or precluding them

from consideration for future hiring decisions.

Johnson v. Santa Clara County Transportation Agency (1987) Johnson v. Santa Clara County Transportation Agency involved a male who

scored higher on a selection test than the woman who got the job. The Court

endorsed using gender as one factor in the decision if underrepresentation is

shown and if the affirmative action plan is not a quota system.

The Court held for the employer, arguing that an employer can take voluntary

affirmative action to remedy its own prior discriminatory practices or where

there is a manifest imbalance in traditionally segregated job categories, even if

there is no arguable violation on its part. In upholding the affirmative action

plan in Johnson, the Court emphasized the same factors that it pointed to in

Weber when upholding that affirmative action plan.

Both Weber and Johnson involve private rather than public employers. Taken

together, Weber and Johnson generally permit limited voluntary affirmative

action by a private employer either to remedy its own past discrimination or

where there is a current manifest imbalance.

However, the restrictions for public employers are stricter than for private

employers. Generally speaking, a public employer can engage in voluntary

affirmative action only to remedy its own past discrimination and not simply to

remedy a current manifest imbalance.

Taxman v. Board of Education ofPiscataway (1993) In Piscataway, the school board chose to lay off a Caucasian high-school

teacher and retain her equally qualified African-American colleague, solely on

the basis of race. The school board admitted that it was not remedying any past

racial discrimination, since African-Americans were well-represented

throughout its workforce.

Rejecting the school board's claim that it was trying to serve the "educational

objective" of maintaining a "culturally diverse" workforce, the full 13-member

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U.S. Court of Appeals for the Third Circuit, by an 8-4 vote, ruled in favor of

Taxman, claiming that "a nonremedial affirmative action plan cannot form the

basis for deviating from the antidiscrimination mandate of Title VII." The

school board appealed to the U.S. Supreme Court; however, settlement of the

case occurred prior to the Supreme Court hearing.

Grutter v. Bollinger and Gratz v. Bollinger (2003) Grutter and Gratz involved challenges by nonminority applicants to the

University of Michigan's law school and undergraduate admission programs

concerning the university's practice of considering race as a factor in admission

decisions to achieve a diverse student body. The Supreme Court ruled that

diversity of a student body is a compelling state interest that can justify the use

of race in university admissions as long as the admission policy is "narrowly

tailored" to achieve this goal. In separate decisions, the Supreme Court held that

the University of Michigan did not make this showing for its undergraduate

admission program (the Gratz case) but that the law school admission program

(the Grutter case) satisfied this standard.

Note that these cases deal with students, not employees, and therefore may not

be directly on point when considering employment issues.

General Dynamics Land Systems, Inc., v. Cline (2004) In the General Dynamics case, the Supreme Court held that the federal age

discrimination law (the ADEA) does not protect younger workers—even if they

are over 40—from workplace decisions that favor older workers. The Court's

ruling reverses a 2002 decision of the 6th U.S. Circuit Court of Appeals that

would have allowed a group of 200 employees over 40 to proceed with an age

discrimination suit. The employees complained that the company violated the

ADEA by cutting off their right to retiree medical benefits while maintaining

that benefit for employees who were over 50 years old on the qualifying date.

Justice Souter wrote that the statute's legislative history demonstrated beyond a

reasonable doubt that the ADEA's purpose was "to protect a relatively old

worker from discrimination that works to the advantage of the relatively

young."

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Employers should keep in mind that a few states have interpreted their fair

employment practices laws to preclude an employer from considering age,

even if to the benefit of older employees.

Ricci v. DeStefano (2009) In Ricci v. DeStefano, the Supreme Court held that employers may violate Title

VII when they engage in race-conscious decision making to address adverse

impact—unless they can demonstrate a "strong basis in evidence" that, had they

not taken the action, they would have been liable under a disparate impact

theory. In this case, the Supreme Court held that the employer did not meet that

threshold standard.

Ricci dealt with the fire department of the city of New Haven, Connecticut (the

"City"), which used a written test to help decide which firefighters would be

eligible for certain promotions. The City had hired a consultant to develop a test

to qualify candidates for promotion to lieutenant and captain. The test had been

"content-validated" under the EEOC's Uniform Guidelines on Employee

Selection Procedures, but the results showed that the test had a statistically

significant adverse impact on African-American firefighters because they

scored significantly lower than white firefighters.

The City rejected the test results and began the promotion process anew. The

test results were not certified, and those with the highest test results lost their

opportunity to be immediately promoted. As a result, 17 white firefighters and

one Hispanic firefighter brought suit against the City alleging intentional

discrimination (disparate treatment) based on their race. The Supreme Court

agreed with the white and Hispanic firefighters.

The Court's decision notes that if an employer announces a test as a selection

device and administers the test to individuals who have relied upon the

announcement of the selection device, then the employer cannot rely upon the

statistical disparity alone to justify ignoring the test results—even if the test

would cause adverse impact. If a validation study was conducted and the test is

content-valid, job-related, and supported by business necessity, the employer

must use the results, unless the employer can demonstrate that there are equally

effective selection devices available having less adverse impact.

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In its opinion, the Court wrote:

Whatever the City's ultimate a im—however well-intentioned or benevolent it might have seemed—the City made its employment decision because of race. The City rejected the test results solely because the higher-scoring candidates were white. The question is not whether that conduct was discriminatory but whether the City had a lawful justification for its race-based action.

Applying a "strong-basis-in-evidenee" standard, the Court concluded that the

City did not have a lawful justification.

Allowing employers to violate the disparate-treatment prohibit ion based on a mere good-faith fear of disparate impact liability would encourage race-based action at the slightest hint of disparate impac t . . .

Restricting an employer's ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title Vl l 's express protection of bona fide promotional examinations.

The Supreme Court attempted to harmonize the disparate impact and disparate

treatment standards in Ricci. However, the Court did not provide guidelines for

employers as to what constitutes a "strong basis in evidence." The Ricci decision does make clear that compensating for apparent disparate impact

discrimination by changing employment decisions to favor minorities may

expose employers to disparate treatment liability to nonminorities. Cases

challenging employer tests are usually filed as disparate impact claims. Ricci potentially makes it harder for employers to defend taking action to correct a

disparate impact and increases the likelihood of both disparate impact and

disparate treatment claims arising out of selection procedures, including tests.

As permitted by the Uniform Guidelines on Employee Selection Procedures,

many employers use tests that have not been formally validated specifically for

the position for which they are hiring. Employers then track the test results so

they can determine whether or not the test creates adverse impact. When a test is

found to create adverse impact, the employer's choices are to modify the test (so

it no longer creates adverse impact), validate it, or eliminate it. In effect, the

Ricci case negates the choice of eliminating the test if the intended use of the

test has been announced, this use has been relied upon by the test takers, and the



test has been implemented—unless the test is not valid or there is another

equally valid and less discriminatory testing alternative. Adverse impact alone

(including the 80% or four-fifths rule) is not sufficient justification.

While the Ricci case has several takeaways, one of the most significant is that

employers should reexamine their employment testing procedures. It is unwise

for an employer to announce and use any test that has not been properly

validated. While employers should still assess adverse impact, with respect to

unvalidated tests, they should do so very cautiously, under the supervision of an

employment attorney, and any changes contemplated as a result of the adverse

impact should be addressed in conjunction with legal counsel.

Quota vs. Merit Hiring Quota systems are a specific source of controversy. A quota involves hiring and

promoting a fixed number of individuals based on race, gender, or other

protected-class standards that must be met at all costs.

In the Weber and Johnson cases described earlier, the Supreme Court indicated

that strict quota systems would not be allowed, even in situations where there

were significant disparities in statistics.

Another case involving a quota system was City of Richmond i>. J. A. Croson Company. In this 1989 decision, the Supreme Court ruled that the rigid

numerical quota system of Richmond, Virginia, was unconstitutional. The

majority opinion concluded that the city had not laid the proper groundwork and

had not adequately identified or documented discrimination.

Occupational Qualification (BFOQ) As noted in Section 2-1, Title VII of the Civil Rights Act of 1964 states that if

gender, religion, or ethnicity is a bona fide occupational qualification

"reasonably necessary to the normal operations of the business or enterprise,"

these factors may be used in making employment decisions.

For example, religious educational institutions have greater but not absolute

leeway in utilizing a religious hiring preference if the religious educational

Bona Fide



institution is, in whole or in substantial part, owned, supported, controlled, or

managed by a particular religious corporation, association, or society or if the

curriculum is directed toward the propagation of a particular religion. Or, an

entertainment company can legitimately cast American Indians for roles in a

documentary about Native American tribes.

It should be noted, however, that the BFOQ provision is a very narrow exception

to the general prohibition against discrimination. BFOQ claims are scrutinized

very carefully by the courts and thus should be used sparingly by the employer.

The Age Discrimination in Employment Act has a similar provision regarding

age.

Employment Practices Liability Insurance Because of the rising number of lawsuits, many employers purchase

employment practices liability insurance (EPLI), which covers businesses

against claims by workers that their legal rights as employees of the company

have been violated.

EPLI provides protection against many kinds of employee lawsuits, including

claims of:

• Sexual harassment.

• Discrimination.

• Wrongful termination.

• Breach of employment contract.

• Negligent evaluation.

• Failure to employ or promote.

• Wrongful discipline.

• Deprivation of career opportunity.

• Wrongful infliction of emotional distress.

• Mismanagement of employee benefit plans.

Such policies cover legal costs whether the company wins or loses the suit; they

generally do not pay for punitive damages or civil and criminal penalties.

Liabilities covered by other insurance policies such as workers' compensation

are excluded from EPLI policies.

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Keep in mind that under some EPLI policies the employer has a duty to notify

the carrier upon receipt of a letter from a lawyer, even if no claim has been

filed. If so, failure to report the letter could result in the waiver of coverage.

Accordingly, read the policy carefully to determine what is a "claim" in terms

of the duty to notify the carrier and to determine restrictions that may apply.

EPLI is also covered in Module 6: Risk Management as a way of minimizing an

organization's risk.

® © 2011 SHRM



Progress Check


1. A manager always hires young, attractive women as receptionists. This is an example of

) a. disparate treatment.

) b. adverse impact.

) c. reverse discrimination.

) d. sexual harassment.

psychological exam that tends to eliminate African-American applicants is an example of

) a. disparate treatment.

) b. adverse impact.

) c. present effects of past discrimination.

) d. outmoded selection practices.

n Washington v. Davis, the Supreme Court ruled that

) a. a test that has an adverse impact against a protected class is legal if it is job-related.

) b. a test used for promotion or selection of employees must be a valid job predictor.

) c. an employer must demonstrate a lack of discriminatory intent.

) d. the burden of proof lies with the employee to show that any employment

requirement is directly job-related.

4. An African-American is asked to fill out an EEO applicant flow form declaring race and

ethnicity. Which of the following statements about this situation is true?

( ) a. The request violates EEO regulations.

( ) b. Compliance is mandatory.

( ) c. The person making the hiring decision cannot be given the form.

( ) d. The form may be incorporated in the employee's file if the applicant is hired.

5. Which of the following provides data on the proportion of current employees in protected

classes by job title within a department or organizational unit?

( ) a. Adverse impact analysis

( ) b. Affirmative action plan

( ) c. Availability analysis

( ) d. Workforce analysis



6. In which section of an AAP would a contractor report that it has 14% women and 28%

minorities represented in its management team?

( ) a. Organizational profile

( ) b. Job group analysis

( ) c. Placement goals

( ) d. Identification of problem areas

7. Which of the following assesses the number of potential employees from protected

classes?

( ) a. Adverse impact analysis

( ) b. Affirmative action plan



8. Which of the following OFCCP activities examines the promotion of minorities and women

to senior-level positions?

( ) a. Focused review

( ) b. Glass ceiling audit



9. Affirmative action plans (AAPs) are illegal when they

( ) a. define underutilization of women and/or minorities.

( ) b. achieve placement goals within a particular affirmative action plan year.

( ) c. result in the discharge of qualified nonminority employees.

( ) d. remedy a specific effect of past discrimination.

10. Which of the following Supreme Court decisions dealt with reverse discrimination?

( ) a. Griggs v. Duke Power

( ) b. Albemarle Paper v. Moody

( ) c. Washington v. Davis

( ) d. General Dynamics Land Systems, Inc., v. Cline

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1. a (p. 2-59)

2. b (p. 2-59)

3. a (p. 2-62)

4. c (p. 2-68)

5. d (p. 2-70)

6. b (p. 2-71)

7. c (p. 2-72)

8. b (p. 2-79)

9. c (p. 2-80)

10. d (p. 2-83)

© 2011 SHRM


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'orkforce Planning

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4

Gender Discrimination and Harassment in the Workplace

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Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of

gender. Additional laws and regulations prohibit discrimination in other specific

areas. But what about situations where one employee tells a joke that is offensive

to a colleague in a protected class or a person uses a derogatory phrase to refer to

an entire protected class? While harassment cases historically have been focused

on sexual claims, recent court decisions encompass other types of harassment.

The EEOC has also adopted the position that employers are accountable for all

forms of unlawful discrimination and harassment—not just those of a sexual

nature.

Additional information about the EEOC's laws and regulations and policy

guidance can be found at www.eeoc.gov/policy/index.html.

The Background of Sexual Harassment Legislation The federal courts have repeatedly ruled that sexual harassment is a form of

gender discrimination, just as racial harassment is a form of race discrimination.

Courts and employers generally have used the definition of sexual harassment

contained in EEOC guidelines, which were first issued in 1978. These

guidelines hold the employer responsible for the actions of its employees.

The guidelines state that". . . unwelcome sexual advances, requests for sexual

favors, and other verbal or physical conduct of a sexual nature constitute sexual

harassment when:

• Submission to such conduct is made either explicitly or implicitly a term or

condition of an individual's employment.

• Submission to or rejection of such conduct by an individual is used as the

basis for employment decisions affecting such individuals.

• Such conduct has the purpose or effect of unreasonably interfering with an

individual's work performance or creating an intimidating, hostile, or

offensive working environment."

Types of Sexual Harassment Sexual harassment claims fall into two categories.


http://www.eeoc.gov/policy/index.html


• Quid pro quo Quid pro quo means "this for that" or "something for something." Quid

pro quo harassment occurs when an employee is forced to choose

between giving in to a superior's sexual demands or forfeiting an

economic benefit such as a pay increase, a promotion, or continued '

employment.

• Hostile environment

Hostile environment harassment occurs when sexual or other

discriminatory conduct is so severe and pervasive that it interferes with, an

individual's performance; creates an intimidating, threatening, or

humiliating work environment; or perpetuates a situation that affects the

employee's psychological well-being. The courts have ruled that hostile

environment sexual harassment can be created by supervisors,' coworkers, "

or nonemployees such as customers.

Precedent-Setting Harassment Cases

The following court cases have been significant in the harassment arena.

Meritor Savings Bank v. Vinson (1986)

In Meritor Savings Bank v. Vinson, the Supreme Court first held that sexual

harassment violates Title VII of the Civil Rights Act of 1964 regardless of

whether it is quid pro quo or hostile environment harassment. The Court also

ruled that common-law principles should be applied to guide lower courts in

determining whether the employer is liable.

But the Supreme Court did not elaborate on how the common-law principles

should be applied. This resulted in considerable disagreement in the lower

courts until two subsequent landmark cases: Faragher v. City of Boca Raton and

Ellerth v. Burlington Northern Industries, which are discussed below.

Common law in this context is derived from decisions made in court cases

and is discussed in Module 5: Employee and Labor Relations.



Harris v. Forklift Systems, Inc. (1993) In Harris v. Forklift Systems, Inc., the Supreme Court ruled for the plaintiff,

holding that in a sexual harassment case the plaintiff does not have to prove

concrete psychological harm to establish a Title VII violation.

Petitioner Harris sued her former employer, claiming that the conduct of

Forklift 's president toward her constituted "abusive work environment"

harassment because of her gender in violation of Title VII. The applicable

standard, reaffirmed by the Supreme Court, had been stated in the earlier

Meritor Savings Bank case: Title VII is violated when the workplace is

permeated with discriminatory behavior that is sufficiently severe or

pervasive to create a discriminatorily hostile or abusive working

environment.

The standard in the Harris case requires an objectively hostile or abusive

environment—one that a "reasonable person" would find hostile or

abusive—as well as the victim's subjective perception that the environment

is abusive. The effect on the employee's psychological well-being is relevant,

though, in determining whether the plaintiff actually found the environment

abusive.

Oncale v. Sundowner Offshore Service, Inc. (1998) The plaintiff in Oncale was a heterosexual male employed on an offshore

oil rig run by Sundowner Offshore Service, Inc. Oncale claimed that a

supervisor and two coworkers harassed him and threatened to rape him. He

resigned from the company and successfully sued Sundowner, the

supervisor, and the coworkers, claiming both quid pro quo and hostile

environment harassment.

The Supreme Court ruled that same-sex harassment is covered under Title

VII 's prohibitions against sex discrimination. However, the ruling did not

include discrimination on the basis of sexual orientation but rather specified

that the harassment must be "because of sex" to be actionable.

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Faragher v. City of Boca Raton and Eiierth v. Burlington Northern Industries (1998)

Faragher v. City of Boca Raton involved a female lifeguard who worked for

the city of Boca Raton, Florida, from 1985 to 1995. Throughout her tenure in

this position, Faragher alleged that she and other female lifeguards were

sexually harassed by two of Faragher's immediate supervisors. The city had a

policy on sexual harassment but did not effectively communicate it to beach

employees. Both of the offending supervisors were unaware of the policy.

Eventually, a former lifeguard reported the harassment to a city official.

Following an investigation, the two supervisors were reprimanded and

disciplined. Faragher then resigned and successfully filed suit against the city

for a hostile work environment violation of Title VII.

The Ellerth case involved a mid-level Burlington Northern manager who

allegedly sexually harassed Ellerth, a female employee. The manager threatened

to take adverse employment action against Ellerth if she did not submit to his

sexual advances. In actuality, the manager never followed through, and Ellerth

received promotions during her 14 months of employment. Burlington Northern

had a sexual harassment policy, but Ellerth never complained to anyone at the

company. Ultimately she resigned because of the harassment and filed suit

alleging that she had been subjected to unlawful sexual harassment and

constructively discharged. (Constructive discharge, which is covered in Section

2-10 in this module, occurs when the employer makes working conditions so

intolerable that the employee has no choice but to resign.)

In the Faragher and Ellerth cases, the Supreme Court distinguished between

supervisor harassment that results in tangible employment action (such as

discharge, failure to promote, or demotion) and supervisor harassment that does

not. When harassment results in a tangible adverse employment action, the

employer is always liable. However, as held in the Ellerth case, if no tangible

adverse employment action was taken against the employee, an employer may

establish an affirmative defense to liability and damages. In order to do so, the

employer must demonstrate that it exercised reasonable care to prevent and

promptly correct the harassing behavior and that the plaintiff who suffered the

harassment unreasonably failed to take advantage of preventive and corrective

opportunities.

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This legal responsibility of the employer is a form of vicarious liability.

Vicarious liability is a legal doctrine under which a party can be held liable for

the wrongful actions of another party. Because of this doctrine, employers are

legally responsible for the discriminatory acts of their employees.

The Faragher and Ellerth decisions established that an employer's vicarious

liability for supervisor harassment that does not result in a tangible employment

action is based on two principles:

• Employers have the responsibility to promptly and irrevocably end

harassment (sexual or otherwise) through appropriate intervention,

including, if necessary, discipline.

• Employees should be encouraged to take advantage of preventive and

corrective opportunities.

Pennsylvania State Police v. Suders (2004) Pennsylvania State Police v. Suders involved a female police communications

officer, Suders, who alleged that she was subjected to sexually harassing

conduct of such severity that she was forced to resign. When Suders sued the

Pennsylvania State Police for sexual harassment and constructive discharge in

violation of Title VII, the question became whether constructive discharge was

a tangible employment action that ruled out the employer's affirmative defense

established by the Faragher and Ellerth decisions.

In June of 2004, the Supreme Court held that in the absence of a tangible

employment action the Ellerth/Faragher affirmative defense is available in a

constructive discharge claim to an employer whose supervisors are charged with

harassment. However, if a supervisor's "official act" is what "precipitates" the

constructive discharge, then the affirmative defense does not apply.

In determining the availability of the affirmative defense, the Court has

commanded lower courts to determine whether the "last straw" was an "official

act of the enterprise." If the employee's resignation was not prompted by his or

her demotion, denial of a promotion, reassignment with significantly different

responsibilities, a significant reduction in benefits, or other significant change in

employment status, the employer can defend on the grounds that the employee

did not give it the opportunity to solve the problem before the employee quit.

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The Suders decision increases the importance and value of employer

prevention and correction. If adequate, such prevention and correction may

help the employer prevail on summary judgment in a constructive discharge

claim, where the damages may include not only back pay but also front pay in

addition to compensatory and punitive damages.

In 1999, the EEOC published guidelines to help clarify how employers can

avoid harassment lawsuits. Figure 14 summarizes these measures.

Recommendations for an Effective Harassment Policy/Prevention Program

The program should:

• Be in writing.

• Define what constitutes harassment and declare that it will not be tolerated.

• Establish a complaint procedure that encourages employees to come forward.

• Involve training and education programs to sensitize management and employees to harassment issues.

• Include a prompt and thorough investigation of every complaint.

• Provide for an investigation that results in corrective action, including disciplinary action if it is determined that unlawful harassment occurred.

• Use as many methods as possible to communicate the policy to management and employees.

Figure 14. Effective Harassment Policy/Prevention

A written harassment policy should include concrete examples of inappropriate

behaviors. A few such examples might be:

• Derogatory remarks about a person's membership in a protected class.

• Visual messages (e.g., posting of cartoons) that are demeaning to a protected

class.

• Jokes that stereotype or make fun of a protected class.

• Nicknames for protected classes.

• Verbal or nonverbal (e.g., mimicking or imitating) innuendoes that have a

negative connotation for a protected class.

© 2011 SHRM


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Further, it should be stated that the harassment policy applies not only to the

workplace during normal business hours but also to business travel and all

work-related social functions, even if such activities are held off-site.

While the Supreme Court does not require an organization to have a complaint

procedure, the Faragher and Ellerth decisions make it clear that if a credible

complaint procedure exists and the plaintiff fails to make use of it, that failure

works to the legal advantage of the employer.

Harassment, like any form of discrimination, must be dealt with appropriately.

Employers who have a sexual harassment policy statement should modify the

policy to ensure that their definition of harassment includes other factors—such

as race, color, age, religion, disability, and national origin—in addition to

gender. Preventive and corrective actions should be thought of as positive

strategic tools that reflect organizational values and shape organizational

behavior, not just as a means to prevent legal liability.

More detailed information about harassment policies and prevention is available

at www.eeoc.gov.

A number of states, such as Connecticut and California, require supervisory

training on harassment by statute. Other states, such as New Jersey, have

reached the same conclusion but by case law.

Sexual Orientation Guidelines At present, no federal statute bars employment discrimination on the basis of

sexual orientation. Bills to ban sexual orientation discrimination in employment

have been introduced in the U.S. Congress, but none have been passed. Thus, the

term "sex" remains as a reference to the condition of being male or female, not to

sexual orientation. The Supreme Court upheld this definition in the Oncale case.

However, at least one federal court has concluded that a claim under Title VII for

sex discrimination could be based upon a theory of gender stereotyping. Further,

some state and local laws do prohibit sexual orientation discrimination.

In addition, a number of states and local jurisdictions have extended their civil

rights law to include "gender identity," which may protect transsexuals and

© 2011 SHRM 2-100 Printed on 30% post-consumer waste recycled paper. ®

http://www.eeoc.gov


other transgendered persons. However, even in those states or local jurisdictions

in which there is no protection based on gender identity, there may be some

protection under Title VII case law involving gender stereotyping.

In the absence of federal laws or other regulations addressing sexual orientation

discrimination, there are voluntary steps an organization can take to provide a

fair workplace and ensure nondiscrimination based on sexual orientation.

Recommended measures are presented in Figure 15. However, before doing so,

consult with legal counsel regarding the risk of liability associated with policies

that may create obligations beyond the scope of applicable laws.

Fair Workplace Recommendations for Employers

• Include sexual orientation in nondiscrimination policies.

• Provide training.

• Prohibit and prevent harassment of gay and lesbian employees.

• Recognize organizations representing the interests of gay and lesbian employees.

• Refer to "sexual orientation" rather than "sexual preference."

• Consider extending employment benefits to domestic partners.

Figure 15. Measures Employers Can Take to Help Ensure a Fair Workplace

When organizations include sexual orientation in their policies and practices,

either as a matter of legal compliance or inclusion beyond legal mandate,

employers also need to be sensitive to the religious beliefs of some who may

oppose the protection. An employer can regulate workplace conduct (prohibit

discrimination, harassment, etc., inconsistent with its policies) but needs to be

careful not to try to dictate beliefs on this sensitive issue.

Awareness and diversity training are also discussed in Module 3: Human

Resource Development.

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Progress Check


1. A Caucasian manager who continually uses an ethnic slur for a person of color is an example

of

( ) a. quid pro quo.

( ) b. adverse impact.

( ) c. reverse discrimination.

( ) d. harassment.

2. Which of the following forms of sexual harassment occurs when an employee must give in to

a supervisor's sexual demands or forfeit a pay increase?

( ) a. Hostile environment

( ) b. Quid pro quo

( ) c. Whistleblowing

( ) d. Reasonable person

3. Which landmark harassment case established that employers are responsible for the

discriminatory acts of their employees?

( ) a. Meritor Savings Bank v. Vinson

( ) b. Faragher v. City of Boca Raton

( ) c. Harris v. Forklift Systems, Inc.

( ) d. Oncale v. Sundowner Offshore Service, Inc.

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1. d (p. 2-94)

2. b (p. 2-95)

3. b (p. 2-98)

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Organizational Staffing Requirements

Workforce Planning

and Employment

2.5


• Identify workforce requirements to achieve the organization's short- and long-term goals and objectives.

• Analyze labor market for trends that impact the ability to meet workforce requirements. SPHR ONLY


• Internal workforce assessment techniques (for example, skills testing, skills inventory, workforce demographic analysis) and employment policies, practices, and procedures (for example, orientation and retention).

• Quantitative analyses required to assess past and future staffing effectiveness.

• ' Needs assessment and analysis.

• Planning techniques.

• Qualitative and quantitative methods and tools for analysis, interpretation, and decision-making purposes.

• The interrelationships among HR activities and programs across functional areas.

• International HR and implications of global workforce for workforce planning and employment. SPHR ONLY

•rce: HR Certification Institute

*

v , t;

to? r * V I- <

-ft p

11 s3 r-fj


Staffing describes the HR function that identifies organizational human capital

needs and then attempts to provide an adequate supply of qualified individuals

for jobs in the organization. Staffing activities encompass internal

redeployments and external recruiting.

Through staffing, the organization's current and future needs for knowledge,

skills, and abilities must be met. As such, staffing plans must support an

organization's strategic plans.

HR may be directly involved in the organization's strategic planning process, or

the HR function may be responsible only for forecasting an HR planning

strategy. Some organizations develop separate strategic and HR plans; others

combine them into one document. The key is that both processes need to be

aligned.

HR planning must consider the corporate strategy in order to anticipate

employee skill and labor needs. This requires that the HR professional look at

where the organization is now as well as where the organization intends to be.

Workforce planning is the process an organization uses to analyze its

workforce and determine steps it must take to prepare for future needs. The

process involves forecasting the future composition of the workforce,

conducting a gap analysis between the current staff and the future staff, deciding

how to close any gaps, and determining how to best meet the needs through

redeployment, training, recruiting, or outsourcing.

Forecasting involves identifying expected future conditions based on

information about the past and the present. It is a good planning method to use

in determining HR supply and demand.

To meet the challenges of today's business environment, HR must increasingly

monitor and control the cost of engaging human capital. Naturally, forecasts are

subject to error. Myriad conditions on which the forecasts are based may

change. But with careful planning, HR professionals can generally forecast with

enough accuracy to help sustain organizational objectives and strategies.



The Needs Analysis Process HR practitioners conduct needs analyses for a variety of reasons—to identify

compensation strategies, to determine employee training needs, etc. In the

workforce planning and employment area, a needs analysis can help to provide

answers to questions that shape an organization's staffing strategy.

Ideally, staffing needs analysis provides a systematic approach to anticipate

human capital needs and data HR professionals can use to ensure that the

appropriate workforce mix will be available when needed to accomplish

organizational goals and objectives.

Doing a needs analysis for staffing may be described as a four-step process that

involves:

• Supply analysis.

• Demand analysis.

• Budget analysis.

• Strategic analysis.

The diagram in Figure 16 on the next page shows the needs analysis

process as well as some of the key staffing questions that each phase

addresses.

Supply Analysis Techniques Supply analysis considers the skill mix in the organization as it exists now and

projects the future needs based on anticipated business growth or retention.

Attrition data is taken into account in considering future supply.

Accurate supply forecasts account for movement into and inside the

organization (new hires, promotions, and transfers) and out of the organization

(resignations, layoffs, retirements, and discharges).

Forecast approaches include a variety of quantitative and qualitative analyses.

Specific analysis tools may range from a manager's "best guess" to rigorous

mathematical applications.



Supply Analysis: Where are we now? What do we have?

• Do we have the right personnel mix to enable the organization to achieve its short-term and long-term business goals?

• Where are the gaps? • Should we look to external sources to add to our job pool? • Can the gaps be filled by workers in the local area, or will we have to seek applicants

elsewhere? • Can we address the gaps through increased training to achieve short-term and long-term

business goals?

¥ Demand Analysis: Where do we want to be? What do we need?

• Are we retrenching or growing? How fast? In what areas? • If the organization is moving in a new direction, does the current staff have the needed

knowledge, skills, and abilities to be successful? • Does the organization need to redefine job descriptions to achieve its long-term goals? • H o w many employees are needed in each job area?

¥ Budget Analysis: H o w can we achieve cost-effective staffing?

• What are the corresponding labor costs? • H o w will we develop policies to manage costs?

¥ Strategic Analysis: H o w will we get what we need?

• Will we look internally or externally to fill vacancies? • What sources should we use? • Should we have a continuous recruitment program or wait until vacancies appear before

engaging in an intensive effort? • What level of applicants are we seeking to fill vacancies? Is it best to hire people at a full

per formance level, or should we seek entry-level candidates and train/develop them? • What are the costs versus the benefits of the recruitment strategy?

Figure 16. The Staffing Needs Analysis Process



As an HR professional, a logical place to start is by consulting with line

managers to examine skills and time utilization to determine ways the

organization can use its existing human resource capabilities more fully. This

way, you will be able to project the available supply of talent by analyzing

whether:

• Employees are using their time appropriately.

• Work should be reallocated to provide more effective use of skills.

• Jobs need to be redesigned.

• Productivity rates are changing.

• Current staff has the ability to achieve the desired outputs.

• Staff growth is exceeding the expansion of outputs.

• The staff has the right kinds of skills.

• Skills are not being applied or are missing.

Once this information is collected, time and skills that are not being

appropriately applied may be identified.

Having assessed current staff competencies, projections of internal supply

seem to be a simple calculation. Consider the number of people in each job,

along with the number of people who will transfer or who will leave the

organization.

After these simple calculations, the number of people who will be left will

provide an estimate of your internal supply.

Reality, however, is not this simple. Too many variables are involved in

forecasting:

• Will the jobs remain the same?

• Will some jobs be eliminated while others are added or combined?

• Can you count on historical data to hold true in the future?

• Will new employees compare to former employees in terms of productivity,

punctuality, sick days, attitudes, and leadership abilities?

For these reasons, HR professionals use tools such as trend and ratio analyses,

turnover analysis, and flow analysis.



Trend and Ratio Analysis Projections

Trend and ratio analyses use statistics to determine whether relationships

exist between two variables. A manager forecasting HR needs must look for

variables related to HR that appear to change predictably over time. The

manager is looking at past performance as a predictor of the future.

Trend analysis example: Using the six years of performance data in Figure 17, the HR manager for ABC Books wants to project the demand for employees for years seven and eight.

Year

1

Business Factor (sales in millions)

$3,613

Labor Productivity (annual sales per

employee)

$11,120

HR Demand (number of employees)

325

2 $3,748 $11,120 337

3 $3,880 $12,520 310

4 $4,095 $12,520 327

5 $4,283 $12,520 342

6 $4,446 $12,520 355

Figure 17. Performance at ABC Books

To accompl ish this, a simple trend analysis can be used that plots the number of employees each year for the last six years and then simply projects this trend out for two more years to predict the number of employees needed.

Number of Employees

1 2 3 4 5 6 7 8

Years

Figure 18. Trend Analysis Example



A statistical formula can be used to calculate the slope of this trend line. Whatever means is used, the trend line is continued out for the next two years to predict the number of employees needed.

Ratio analysis example: The HR manager for ABC Books could also use the Figure 17 data to project the demand for employees by using ratio analysis.

The labor productivity (Sales Number of employees) has remained at $12,520 for the past four years.

If management assumes that labor productivity will stay at $12,520 and sales are predicted to increase to $5 million in year seven, the calculation is as follows:

$5,000,000 * $12,520 = 399 employees

Based on this ratio analysis, the HR manager will need to hire 44 new employees (399 - 355) to achieve the increase in sales.

However, let's say that management believes that because of new efficiencies created by better training and equipment, labor productivity will increase to $13,000 for year seven.

If that assumption is used, then the following ratio applies:

$5,000,000 * $13,000 = 384 employees

In this case, the HR manager will need to hire 29 new employees (384 - 355).

N o t e that the e x a m p l e s a s s u m e that there is n o tu rnover . T u r n o v e r should a l so

b e fac to red in w h e n dec id ing on a f ina l es t imate . A d i scuss ion of tu rnover

fo l lows .

T h e abi l i ty to p red ic t var iab les such as level o f sa les , p roduc t i on , or se rv ice

wi th in w o r k a b l e l imi ts or ranges m o s t o f t en b e c o m e s the f o u n d a t i o n for

m a k i n g the H R fo recas t . T h e r e f o r e , in t rend and ra t io ana lyses , w h e n f igu res

a re p ro j ec t ed into the fu tu re , the k e y de t e rminan t is w h e t h e r re la t ionships

will con t inue to ho ld . In this case , the c lear iden t i f i ca t ion o f a s s u m p t i o n s

unde r ly ing the fo recas t is cri t ical to in te rpre ta t ion and a c c e p t a n c e of the

i n fo rma t ion .



Turnover Analysis Projecting turnover is another essential technique to use in estimating HR

requirements. Employees may leave an organization for a variety of reasons,

including:

• Retirement.

• Resignation.

• Dismissal.

• Layoff.

• Disability.

• Leave of absence.

• Death.

Turnover is a metric and is normally expressed using an annualized formula

that tracks the number of separations and the total number of workforce

employees per month.

Example: Here is ABC Books' workplace data.

(separations) (total workforce) January 15 250

February 5 245

March 5 240

Apri l 2 238

May 3 235

June 10 225

July 5 220

August 0 220

September 4 216

October 1 215

November 15 200

December 0 200

Total 65 2,704

Figure 19. Separations at ABC Books



To calculate the annualized employee turnover percentage:

• Divide the total number of employees for the year (2,704) by 12 months.

This yields an average monthly workforce of 225 employees.

• Divide the number of separations for the year by the average number of

employees per month.

— = 28.9% 225

You may also calculate turnover for shorter time periods (for instance, the first

three months of a year) but then annualize the results to project what the annual

turnover would be for 12 months.

Two of the most common methods to project turnover are:

• Examining previous turnover rates and adjusting them to reflect knowledge

of changing conditions such as pay rates and the economy.

• Analyzing trends in turnover rates for particular geographic locations or

occupational categories.

Flow Analysis To examine employee flows in, up, down, across, and out of an organization

and to project future movement, HR planners must separate employees by

levels, occupational groupings, or organizational units.

The following methods can assist HR planners in projecting internal

turnover:

• Analyze the career development plans for employees on an aggregate

basis by job function, division, or other organizational classification.

Using the target positions for employees and their rating of readiness for

the position (e.g., immediately, one year, two years), managers can

project the availability of talent for positions.

• Obtain estimates from each division of transfers and promotions into, out

of, and within the divisions. These estimates may be aggregate and may

reflect subjective probability of movement based on historical data.

© 2011 SHRM


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• Project future movement through statistical analysis. Models of

employee flows project the numbers of employees who will remain in an

organizational classification based on past transition rates or

probabilities. (A word of caution: Past transition rates and probabilities

may have limited value in predicting future trends. Like everything else,

these too are affected by change.)

Example: Figure 20 shows movement in the shipping department at ABC Books for the first quarter of this year.

^ ^ ^ ^ ^ ^ / n v w ^ ^ ^ ^ t

Transfers Promotions New hires Recalls

Total

D 4

15 ]0

34

Promotions Resignations Demotions Retirements Terminations Layoffs

Total

Figure 20. Flow Analysis

D 13 o 4 3

J_5

40

Using this simple flow analysis allows the HR manager to visualize the change

in the department and predict future staffing needs.

The following content on the ability to meet workforce requirements has been identified by the HR Certification Institute in the body of knowledge as pertaining to SPHR certification only. Questions related to this content will appear on the SPHR exam only.

Demand Analysis Techniques Demand analysis considers the model organization of the future and its

human capital needs. Once the supply model is developed, data can be

compared to the demand analysis projections and gaps can be identified,

including numbers of employees and gaps in skills. Demand analysis



should not just project the most probable future. Other future scenarios

should be considered, as the potential impact on gaps may be considerably

different.

Various techniques may be used in demand analysis. But the basic issue is

projecting the number of employees and the skills required to meet future

organizational goals.

Module 1: Strategic Business Management includes a related discussion on

environmental scanning.

Judgmental Forecasts Judgmental forecasts use information from the past and present to

predict expected future conditions. These forecasts utilize information

provided by individuals associated with the industry to project future

industry needs.

Overall, for judgmental forecasting to be effective, HR needs estimates of:

• New positions or skill sets needed.

• Positions to be changed, eliminated, or left unfilled.

• Job sharing.

• Job design needs or organizational structure changes.

• Costs of changes.

• Adjustments in overhead, contracted labor, and supervision.

Judgmental forecasting can be broken into three types:

• Managerial estimates

• Delphi technique

• Nominal group technique

Managerial estimates Managerial estimates, as the name implies, consist of projections made by

managers. This can work two ways: It can happen from the top down or

the bottom up. The success of this method is entirely dependent upon the

quality of information provided to managers to use in making estimates.

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Delphi technique The Delphi technique progressively collects information from a group on a

preselected issue. This process is usually done by mail, but more recently fax

and e-mail responses have eased the process and greatly shortened the time

necessary for completion.

After the issue is identified by the coordinator, each participant lists his/her

ideas about the issue in question in a brief, concise manner and returns the list

anonymously to the coordinator. No attempt should be made to evaluate or

justify the ideas at this stage. Then the coordinator prepares and sends a second

questionnaire to participants that contains all of the ideas sent in response to the

first questionnaire and provides space for participants to refine each idea, to

comment on each idea's strengths and weaknesses for addressing the issue, and

to identify new ideas. The coordinator repeats the process until it becomes clear

that no new ideas are emerging and that all strengths, weaknesses, and opinions

have been identified.

The approach is designed to facilitate group involvement, problem solving, and

individual thinking but avoid "group think."

The diagram in Figure 21 on the next page illustrates the Delphi technique process.

Nominal group technique

The nominal group technique uses a variety of individuals to forecast ideas

and assumptions and prioritize issues. Unlike the Delphi technique, the

individuals are brought together for a face-to-face discussion. The structured

session is led by a moderator.

The nominal group technique process occurs as follows:

• Participants independently write down their ideas.

• Each participant presents one idea to the group, without discussion, in a

round-robin fashion.

• Ideas are summarized on a flip chart or blackboard.

• The group discusses and clarifies ideas.

• Ideas are ranked independently by participants.

• Rankings are pooled, and the ideas with the highest ranking are identified as

the major problems or issues that need addressing.

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© 2011 SHRM


Coordinator identifies judgment issue and develops questionnaire. , _ _

Prospective participants are identified and asked to cooperate.

I — Coordinator sends questionnaires to willing

participants, vvlio record their judgments and recommendations and return the questionnaires.

+ Coordinator anonymously compiles summaries

and reproduces participants' responses. .

Coordinator sends the compiled list of judgments to all participants.

Participants comment on ideas and propose a final judgment.

Coordinator looks for consensus.

Coordinator accepts consensus judgment as group's choice. I

Figure 21. The Delphi Technique

Statistical Forecasts Statistical forecasts generally fall into two categories: regression analysis and

simulations.

Regression analysis Regression analysis can be further subdivided into two types:

• Simple linear regression is a projection of future demand based on a past

relationship between employment level and a single variable related to

employment.

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Example: A statistical relationship between gross sales and number of employees, such as the trend analysis for ABC Books, might be useful in forecasting the number of employees needed in the future if sales increase by 25%.

• Multiple linear regression operates the same as simple linear regression,

except that several variables are utilized to project future demand.

Example: ABC Books might add hours of operation to gross sales to determine the number of employees needed.

Simulations

Simulations are representations of real situations in abstract form and are often

referred to as "what i f ' scenarios. They give organizations the opportunity to

speculate as to what would happen if certain courses of action were pursued.

Example: ABC Books might consider the ramifications of changing a compensation system, doing business online, or changing the store location.

Statistics are also discussed in Module 1: Strategic Business Management.

Additional information on workforce planning is available through SHRM's

"Workforce Planning Toolkit," at www.shrm.org/TemplatesTools/Toolkits/

Pages/default.aspx. (This resource is available to SHRM members only.)

This concludes the SPHR-level content on the ability to meet workforce requirements.

The following content on international workforce planning and employment has been identified by the HR Certification Institute in the body of knowledge as pertaining to SPHR certification only. Questions related to this content will appear on the SPHR exam only.

International Workforce Planning Global talent acquisition broadly describes the actions an organization takes to

meet current and future skill needs for operations worldwide. It is much more

than simultaneously staffing multiple organizations in multiple countries. It is

the managing of talent and skills as a single resource across the entire globe,

with the objective of moving the strategic goals of the global organization

forward over the long term. Global staffing is the HR function that identifies

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http://www.shrm.org/TemplatesTools/Toolkits/


staffing needs throughout a global enterprise and then recruits, selects, and

deploys worldwide talent resources to meet those requirements.

HR professionals must collaborate with organizational strategic planners to

identify global human capital requirements. Similar to internal workforce

planning, a gap analysis must compare global requirements to present skill and

competency levels and identify the need for additional or new staffing resources.

With this information, HR can then design, develop, and implement strategies to

support the corporate strategy and vision of where the organization wants to be in

the global business environment.

Several factors influence global staffing. A couple of the key considerations are:

• What is the organizational approach to international business?

• What types of international workers should be used?

Organizational Approach to International Business Four terms are commonly used to describe how a firm manages its international

operations. Figure 22 provides an overview of each approach and describes its

general impact on staffing.

Global Approach Description Impact on Staffing

Ethnocentric • Headquarters maintains tight control over the international operations.

• Subsidiaries have little autonomy.

• Key positions at home and abroad are held by personnel from the headquarters country.

• Talent and skills transfer essentially one way.

• Headquarters-country HR policies and practices are exported abroad.

Polycentric • Each international operation is treated as a distinct national entity.

• Local nationals are hired to manage functions, but they are rarely promoted to headquarters assignments.

• Headquarters-country personnel have little impact.

• Talent acquisit ion policies are unique to each country.

• Limited cross-border movement of talent and skills.

Figure 22. Relationship of Global Business Approaches and Staffing (continued next page)



Global Approach Description Impact on Staffing

Regiocentric • Operations are managed • Employees circulate within regionally. regions, with focus on

• Communications and regional business results. coordination within a • Talent acquisition policies region are high but less are developed and so between regions. coordinated within regions.

• Talent and skills are developed within regions, with minimal interregion transfer.

Geocentric • Organization is viewed • Employees circulate as a single international throughout the global enterprise rather than a organization. collection of individual • Talent acquisition policies headquarters-country maximize long-term strength and international of the global organization. operations. • Talent and skills are

• Strategic plan is global in deployed globally to best orientation. achieve global goals while

• Talent comes from any meeting local requirements. location.

Source: Adapted from SHRM Global Learning System: Global Talent Acquisition and Mobility. Alexandria, Virginia: Society for Human Resource Management, 2009.

Figure 22. Relationship of Global Business Approaches and Staffing (concluded)

Ethnocentric? Polycentric? Regiocentric? Or geocentric? Which approach is

best for staffing international assignments?

There is no definitive answer, since several internal and external factors

impact the situation. Organizational factors such as strategy, structure,

size, and the resource pool of people who can be sent abroad in

conjunction with the conditions existing in the country (e.g., type of

government, economy, and national and local employment practices)

need to be considered. In some situations, an organization operating in

several regions of the world may use a combination of strategies based

on the country specifics.

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Types of International Workers International assignments can be filled from a variety of sources. Historically,

international talent was described using the following broad terms:

• Parent-country nationals (PCNs)—Citizens of the organization's

headquarters country who reside and work abroad with the intent of returning

to the home country. The United States employee of a New York-based firm

who accepts a three-year assignment in Germany is considered a parent-

country national.

• Third-country nationals (TCNs)—Employees who are citizens of countries

other than where they work or where the organization's headquarters resides.

A Japanese computer specialist who accepts a position in Germany with a

multinational firm with headquarters in the United States is a third-country

national.

• Host-country nationals (HCNs) or local nationals—Employees working in

their own country. A Chinese national who is hired by a British firm to work

in Shanghai at a British subsidiary is a local national.

• Expatriates—Collective term for employees sent abroad to work in a country

other than where they live.

• Inpatriates—Employees brought in from another country to work in the

headquarters country for a specified period.

• Repatriates—Employees who have returned home from an international

assignment.

Some of these terms prevail. Typically, international assignee is now the all-

encompassing term used to describe anyone on an international assignment.

Organizations traditionally used expatriates as the main talent source for

staffing international operations when initiating, expanding, and seeking to

control operations. But concerns about the cost of these assignments, their

overall effectiveness, and other issues such as work/life balance and family

challenges combined with talent shortages have led organizations to tap other

types of international workers.

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Selec t ing in te rna t iona l worke r s is o f grea t i m p o r t a n c e and requi res s t ra tegic

H R M p lann ing . F igu re 23 lists severa l types of in te rna t iona l w o r k e r s that

o rgan iza t ions c o m m o n l y use to s ta f f their g loba l opera t ions . N o t e that s o m e of

these t e rms re f lec t the type of a s s i g n m e n t wh i l e o thers spec i f ica l ly re fer to the

indiv idual .

Types of International Assignments and Employees

General Description

Short-term assignees Employees who go abroad for a specified period of time (usually between three months and a year); family may/may not accompany the employee

Long-term assignees Refers to the traditional expatriate assignment; usually lasts longer than one year and involves relocating the employee and family to the host country

Sequential/rotational employees Employees who commute from the parent company to a workplace in another country for a specified short duration and then return home for a break

Commuting employees (international commuters)

Employees who live in one country and work in another country by regularly commuting across borders (usually weekly or biweekly) to perform different aspects of the job while their families remain at home

Frequent f lyers/extended business travelers

Employees who make frequent international trips but do not relocate

Stealth expats/stealth pats/stealth assignees

Employees who work in another country (for more than 30 days or through a series of trips) outside their employer's global mobility programs and often without HR's knowledge

Local hires (local nationals) Employees hired locally

Localized employees Employees sent to work in a country (usually with some allowances to get there) but hired as local employees

Permanent assignees (permanent locals)

Individuals who essentially spend their entire career moving from international assignment to

Figure 23. Types of International Workers (continued next page)



Types of International Assignments and Employees General Description

Interns/trainees (temporary, nonimmigrants)

Workers brought into an organization's home country to work for a short duration (usually between six months and a year) as interns or trainees

Returnees Emigrants who are hired by an organization to return to their home country and work there for the firm; may already be employed by the organization and selected to return home for work

Virtual employees Employees who do not relocate but have a responsibility to manage international staff or work with others from their home base, typically via electronic communication; may meet face to face occasionally

Retirees Retired employees hired back (usually for short-term assignments)

Part-t ime employees Workers who are contracted to work less than full-t ime hours

Temporary (contingent) employees Labor brought in for t ime-based or project-based work, possible though a third party

Temp-to-hire (temp-to-permanent) employees

Workers hired on a temporary ("temp") basis (usually through an agency) with the understanding that they may be hired for regular employment if they perform competently for a specif ied period of t ime

Outsourced employees Workers outside an organization paid for their services by an independent company that assumes full operational responsibility for them through a contract with the organization

Source: SHRM Global Learning System: Global Talent Acquisition and Mobility. Alexandria, Virginia: Society for Human Resource Management, 2009.

Figure 23. Types of International Workers (concluded)

This concludes the SPHR-level content on international workforce planning and employment.

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Progress Check


1. A turnover analysis is a technique that

( ) a. tracks the rate of employee separations.

( ) b. utilizes information provided by individuals associated with an industiy to project

future industry needs.

( ) c. predicts future employment trends based on marketplace data.

( ) d. determines if a relationship exists between two variables through the use of

regression analysis and simulations.

2. Several HR managers are brought together to generate ideas about the impact of technology

on HR management and staffing. This best describes which forecasting method?

( ) a. Delphi technique

( ) b. Managerial estimates

( ) c. Multiple regression analysis

( ) d. Nominal group technique

3. Which forecasting method would be used to make a statistical comparison between gross

sales and the number of employees in a retail chain?

( ) a. Delphi technique

( ) b. Staffing ratio

( ) c. Turnover analysis

( ) d. Regression analysis

4. In which organizational approach to international human resource management is it common

to have all key executive positions held by personnel from the headquarters country?

( ) a. Ethnocentric

( ) b. Polycentric

( ) c. Regiocentric

( ) d. Geocentric




1. a (p. 2-112)

2. d (p. 2-116)

3. d (p. 2-117)

4. a (p. 2-119)

© 2011 SHRM


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Vorkforce Planning

nd Employment

.6


• Conduct job analyses to create job descriptions and identify job competencies.

• Identify and document essential job functions for positions.

• Establish hiring criteria based on job descriptions and required competencies.


• Job analysis and job description methods.

• The interrelationships among HR activities and programs across functional areas.


Job Analysis and Job Description Methods The success of any organization depends on the performance of its employees.

All the jobs in an organization must interrelate to accomplish the organization's

mission, goals, and objectives.

In this module, the terms "job," "job analysis," "job description," "job

specifications," and "job competencies" will be covered.

A job is a collection of activities (tasks) and responsibilities that an employee is

responsible to conduct.

Today, an increasing number of organizations are using alternatives to the

traditional hierarchical structure (e.g., teams and project staffs). Thus, a "job" is

often referred to as an "employee role" (which could include team member, for

example). However, the principles remain similar.

Figure 24 provides a graphic overview of how these job components fit

together.

Figure 24. Elements of Job Analysis and Employee Jobs

Job Analysis Job analysis is a systematic study of jobs to determine what activities (tasks)

and responsibilities they include, their relative importance and relationship with

other jobs, the personal qualifications necessary for performance of the jobs,

and the conditions under which the work is performed.

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An important concept in job analysis is that an analysis is conducted of the job,

not the person doing the job (even though some job analysis data may be

collected from incumbents).

Three key elements included in a job analysis are commonly abbreviated as

KSAs:

• Knowledge—body of information necessary for task performance

• Skills—level of proficiency needed for task performance

• Abilities—capabilities necessary to perform the job

Minimum selection criteria should not include KSAs that can be taught in a

relatively short time frame (for example, a day).

Job analysis information is typically collected by the HR department,

supervisors, and job incumbents. Some organizations may hire an external

consultant to conduct a job analysis.

Factors to Consider During Job Analysis A job analysis generally gathers information about the following:

• Job context—the purpose of the job, its work environment, its place in the

organizational structure

• Job content—the duties and responsibilities of people who hold the job

• Job specifications/qualifications—knowledge, skills, and ability required for

a person to have a reasonable chance of being able to successfully perform

the job

• Performance criteria—desired behaviors/results that will constitute

performance in the job

Job Analysis Methods Job analysis is a time-consuming, demanding task. In addition, it can be difficult

to show statistically the extent to which a job analysis is valid and reliable,

particularly as jobs get more complex.



It is not easy to determine what employees actually do on the job. Even direct

observation is influenced by the perceptions of the observer.

However, taking the following actions can help to obtain the best results:

• Obtain information directly from the job incumbent when feasible, although

additional input may come from managers, subordinates, and other sources.

• Collect data from multiple job holders and supervisors.

• Select a technique that allows information to be obtained, summarized, and

processed with minimal effort. For example, codable, concise data is easier

to process than narrative, descriptive information.

• Select a technique that is easy to update without having to repeat the entire

process from the beginning.

Figure 25 compares common job analysis methods: observation, interview,

questionnaire, and work diary/log.

Method Description

Observation Direct observation of employees performing the tasks of a job, recording observations, and later translating them into the necessary knowledge, skills, and abilities.

Benefits

Provides a realistic view of the daily tasks and activities performed in a job. Works best for short-cycle jobs in production.

Interview Face-to-face interview in which the interviewer obtains the necessary information from the employee about knowledge, skills, and abilities needed to perform the job.

Interviewer uses predetermined questions, with new ones added based on the response of the employee being interviewed. Good for professional jobs.

Open-ended questionnaire

Questionnaires to job incumbents and sometimes to their managers asking about the knowledge, skills, and abilities necessary to perform the job. The answers are then combined, and a composite statement of job requirements is published.

Produces reasonable job requirements because input is solicited from both employees and managers. Good when a large number of jobs must be analyzed and there are insufficient resources to do it.

Figure 25. Job Analysis Methods (continued next page)



Method Description Benefits

Highly structured questionnaire

Questionnaires structured in a manner that allows only specific responses, aimed at determining the frequency with which specific tasks are performed, their relative importance, and the skills required.

Defines job with a relatively objective approach, which also enables analysis to be performed using computer models.

Work diary or log Diary or anecdotal record maintained by the employee. Job information, including the frequency and timing of tasks, is recorded in the diary. Logs are usually kept over an extended period of time. They are then analyzed and patterns identified and translated into duties and responsibilities.

Provides an enormous amount of data. Method can be applicable to most jobs.

Caution: Too much data may be difficult to interpret, irrelevant to the job, and/or difficult to keep up-to-date.

Figure 25. Job Analysis Methods (concluded)

Job Analysis Outcomes Figure 26 shows two of the primary outcomes from a job analysis: a job

description and job specifications. These outcomes will be discussed in more

detail later in this section.

Job Analysis: The Process of Documenting a Job

Job description Job specifications Written description of a job and its Written statements of the necessary

requirements: qualifications for the job incumbent:

• Job title and location • Education

• Organizational relationships • Experience

• Duties and responsibilities • Training

• Essential job functions • Mental abilities

• Nonessential job functions • Physical efforts and skills

• Working conditions • Judgment

• Level of financial accountability • Decision making

Figure 26. Job Analysis, Job Description, and Job Specifications

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Job Analysis Uses Job analysis serves a wide variety of uses, as shown in Figure 27.

Figure 27. Job Analysis Uses

Module 3: Human Resource Development and Module 4: Total Rewards

examine some of these job analysis applications in more detail.

Essential Job Functions

•As noted earlier, under the Americans with Disabilities Act (ADA), a

person is qualified for a job if lie or she can perform the essential functions

of that job with or without reasonable accommodation. Essential job

functions are those fundamental job-related duties that are necessary to the „

position.

Essential functions are distinguished from other nonessential or marginal

functions that are part of the job but are incidental or ancillary to the purpose

and nature of the job.

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® © 2011 SHRM



The ADA does not mandate that employers eliminate or lower valid job standards.

All job applicants, disabled or not, should satisfy the requirements for requisite

skills, experience, and education. Nor does the law suggest that employers ignore

mental abilities, physical effort, psychomotor skills, and any other job-related

criteria required to perform the essential job functions. Instead, the law requires that

employers look beyond the traditional means and manner of performance.

Any statements regarding the essential functions of a job are necessary to defend

employment decisions. They are subject to scrutiny by federal compliance agencies.

In the event that charges are filed under the ADA, a threshold question will be the

definition of and justification for the essential functions of the job in question. It

therefore behooves an employer to carefully identify essential job functions. In

Figure 28, a sample worksheet is shown that an employer might use to determine

essential job functions.

Essential Function Characteristics Determination

Does the job exist to do this function? • Yes • No

Time per week spent on this function

Minimum qualifications

Are these qualifications enforced? • Yes • No Explain:

Critical skills, experience, training, education, license, etc.

Equipment used

Can other incumbents do this function if necessary?

• Yes • No Explain:

Would eliminating this function significantly alter the job?


Would there be significant consequences if this were not performed?


Based on the answers above, is the job function essential (as opposed to nonessential)?


Figure 28. Essential Job Functions Worksheet

2-133 © 2011 SHRM ^^^ Printed on 30% post-consumer waste recycled paper.


In their interpretive guidance on the ADA, the Equal Employment Opportunity

Commission notes that a job function may be considered essential for several

reasons. Figure 29 provides a list of the types of evidence the EEOC evaluates in

determining if a function is essential.

Recommendations for Determining Essential Functions

The employer's judgment as to which functions are essential (including the supervisor and others who are likely to have knowledge of the job)

A written job analysis prepared for recruitment advertising and/or interviewing job applicants

The amount of time spent on the job performing the function

The consequences of not requiring the incumbent to perform the function

The terms of a collective bargaining agreement

The work experience of past incumbents in the job

The current work experience of incumbents in similar jobs

Figure 29. Determining Essential Job Functions

In evaluating the validity of essential job functions, the EEOC notes that case-by-

case determinations are made. While percentages of time may be helpful as a starting

point for HR to assess whether a function is essential, it is ordinarily recommended

that the percentages not be included in the job description itself. In discussing time

spent performing the particular function, the EEOC uses the following example: "[If]

an employee spends the vast majority of his or her time working at a cash register,

this would be evidence that operating a cash register is an essential function."

However, the EEOC does not reference a specific percentage.

In discussing the consequences of not requiring the incumbent to perform the

function, the EEOC cites this example: "Although a firefighter may not regularly

carry an unconscious adult out of a burning building, the consequences of failing

to require the firefighter to be able to perform this function would be serious." In

this case, the percentage of time the individual performs the function is not the

critical element, but the consequence of nonperformance is.

Additional information on the ADA, essential job functions, and reasonable

accommodation is found in Section 2-1 of this module, "Key Legislation Affecting

Employee Rights," and Section 2-9, "Selection and Retention." To review EEOC

regulations on these ADA topics, visit the EEOC Web site, www.eeoc.gov.

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http://www.eeoc.gov


As previously mentioned, the outcome of a job analysis is some form of

documentation (e.g., a job description and job specifications).

A job description summarizes the most important features of a job, including

a description of the work that details the required tasks, knowledge, skills,

abilities, responsibilities, and reporting structure/The physical requirements of

the job must also be included for ADA considerations. To the extent the

employer is treating the position as exempt, it is beneficial to include in the job

description those duties that support the exempt status.

Benefits of Job Descriptions Like job analysis, job descriptions are important tools for organizations. A job

description serves a variety of functions, including job evaluation, selection,

recruitment, HR planning, training, safety, compensation, and performance

appraisal. Realistically defined job specifications in a job description can even

allow prospective employees to screen themselves.

The benefits of job descriptions include (but are not limited to) the following:

• They define the jobs for performance planning, transfer, promotion, staff

planning, career, and disability accommodation purposes.

• They use standard formats that allow for consistent application.

• They give employees written definitions of their jobs.

• They provide reliable sources for comparing job salary surveys.

® They help organizations move swiftly to increase or replace staff due to

increased business or turnover.

® They help those responsible for work flow to perform systematic analyses of

organizations' work processes from start to finish.

Format of Job Descriptions The format of job descriptions varies greatly from organization to organization.

Figures 30 and 31 on the following pages provide two examples, one for an

exempt employee and the other for a nonexempt employee.

2-135 © 2011 SHRM ^^^ Printed on 30% post-consumer waste recycled paper. ®


Job title: Vice President of Engineering Department: Engineering

FLSA status: Exempt executive Reports to: CEO

Position summary: Manages and directs corporate engineering for Company XYZ

General purpose: Strategic planning; product design; quality assurance; problem resolution

Role qualifications: • Must execute product design to meet company objectives • Must partner with management team to ensure effective product development • Must develop systems and controls to ensure compliance with quality standards

Position responsibilities: • Develops and directs procedures and methods to ensure that quality standards are met and maintained • Provides engineering expertise in the areas of tooling, prints, specifications, product maintenance, raw

materials, and vended products throughout the organization • Manages engineering budget • Manages and builds current bill of materials • Manages product design from design to execution • Recommends methods, materials, and layouts for improvement based on manufacturing needs/capabilities • Builds, develops, and manages engineering team capable of carrying out needed engineering initiatives • Performs other related duties as assigned

Essential skills and experience: • Bachelor's degree in engineering, business administration, or related field • Leadership: demonstrated ability to lead people and get results through others • Planning: ability to think ahead and plan over a one- to two-year time span • Management: ability to organize and manage multiple priorities • Problem analysis and problem resolution at both a strategic and a functional level • Technical skills in engineering management, quality assurance, and costing • Strong customer orientation • Excellent interpersonal and communication skills • High performance teams and a strong team player • Commitment to company values

Valued but not required skills and experience: • MBA • Experience in value engineering and lean manufacturing environments • Advanced computer proficiency

Reporting to this position: The engineering manager; ultimately position is responsible for a ten-person team.

Physical demands and work environment: The physical demands and work environment characteristics described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.

• Physical demands: While performing duties of job, employee is occasionally required to stand; walk; sit; use hands to finger, handle, or feel objects, tools, or controls; reach with hands and arms; talk and hear. Employee must occasionally lift and/or move up to 25 pounds. Specific vision abilities required by the job include close vision, distance vision, color vision, peripheral vision, depth perception, and the ability to adjust focus.

• Work environment: The noise level in the work environment is usually moderate.

General sign-off: The employee is expected to adhere to all company policies and to act as a role model in the adherence to policies.

I have read and understand this explanation and job description.

Signature: Date:

Figure 30. Sample Description—Exempt Job

2-136 © 2011 SHRM



Job title: Customer Service Representative Department: Customer Service

FLSA status: Nonexempt Reports to: Director of Customer Service

Position summary: Primarily responsible for providing effective customer service for all internal and external Company XYZ customers by utilizing excellent, in-depth knowledge of company products and programs

General purpose: Customer relations; problem resolution; time management

Role qualifications: • Must partner with the sales team to provide customers with service as outlined in the department's policies

and procedures

• Must address customer issues and ensure effective and long-term problem resolution

Position responsibilities: • Provide timely and accurate information to incoming customer order status and product knowledge requests • Process customer orders/changes according to established department policies and procedures • Process customer returns according to established department policies and procedures • Work closely with the credit department to resolve disputed credit items • Provide timely feedback to the company regarding service failures or customer concerns • Partner with sales reps to meet and exceed customers' service expectations • Perform other related duties as assigned

Essential skills and experience: • Time management: the ability to organize and manage multiple priorities • Customer service system experience • Strong customer orientation • Excellent interpersonal and communication skills • Strong team player • Commitment to company values • Basic computer proficiency

Nonessential skills and experience: • Customer service experience in a manufacturing environment • Customer service experience with an independent sales rep force • Inside sales experience • Microsoft Word and Excel

Reporting to this position: No direct reports

Physical demands and work environment: The physical demands and work environment characteristics described here are representative of those that must be met by an employee to successfully perform the essential functions of this job. Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.

• Physical demands: While performing the duties of this job, the employee is occasionally required to walk; sit; use hands to finger, handle, or feel objects, tools, or controls; reach with hands and arms; balance; stoop; talk or hear. The employee must occasionally lift and/or move up to 15 pounds. Specific vision abilities required by the job include close vision, distance vision, color vision, peripheral vision, depth perception, and the ability to adjust focus.

• Work environment: While performing the duties of this job, the employee is exposed to weather conditions prevalent at the time. The noise level in the work environment is usually minimal.

General sign-off: The employee is expected to adhere to all company policies.

I have read and understand this explanation and job description.

Signature: Date:

Replaces: Client Support Technician (11/1/xx)

Figure 31. Sample Description—Nonexempt Job

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Note that the specific statements shown in each section of these descriptions are

not intended to be all-inclusive. These examples are illustrative of typical

elements and criteria necessary to successfully perform the jobs.

Various resources are available for HR professionals to help develop job

descriptions, including SHRM Online and 0*NET, the Occupational

Information Network. 0*NET, online.onetcenter.org, is the replacement for the

Dictionary of Occupational Titles (DOT). 0 * N E T moves occupational

information into the technological age. It provides a comprehensive database

containing information on hundreds of standardized and occupation-specific

descriptors, including worker attributes and job characteristics applicable in

both the public and private sectors and a common language for defining and

describing occupations. 0 * N E T ' s flexible design also captures rapidly

changing job requirements.

The goal of 0 * N E T is to improve the quality of dialogue among people who

communicate about jobs in the economy, generate employment statistics, and

develop education and training programs. Employer hiring requirements will

have the same meaning for HR practitioners, workers, education and training

developers, program planners, and students.

Elements of Job Descriptions Job descriptions can include the following elements:

• Summary—a four- or five-sentence overview that summarizes the purpose

and objectives of the job. This section also covers the primary

responsibilities of the job, the results the worker is expected to accomplish,

and the degree of freedom to act (for example, independently or under direct

supervision).

• Essential functions—the tasks, duties, and responsibilities of the job. The

list often includes statements explaining why the function is required. This

is useful for evaluating ADA compliance.

• Nonessential functions—desirable, but not necessary, aspects of the job.

• Knowledge, skills, and abilities required—the specific competencies

required for job performance.

• Supervisory responsibilities—the scope of the person's authority, including

a list of jobs that report to the incumbent.



• Working conditions—the environment in which the job is performed,

especially any unpleasant (or dangerous) conditions.

• Minimum qualifications—minimum knowledge, skills, and abilities

required to enter the job.

• Success factors—personal characteristics that contribute to an individual's

ability to perform well in the job.

Job descriptions typically are written by HR, although line management is

increasingly assuming this responsibility—at least in part.

Job Specifications

A job specification spells out the qualifications necessary for an incumbent to

be able to perform the job. Job .specifications must be carefully worded to

ensure legal defensibility. ' -

Some of the basic characteristics of job specifications have already been

discussed in this section. A job specification is a logical outgrowth of a job

analysis.

Additionally, job specifications often include the following:

• Experience, training, education, licenses, and certification required

• Physical and mental demands

• Level of organizational responsibility

The job specification can be a separate section of the job description or a

separate document.

A job specification should reflect what is necessary for satisfactory

performance, not what the ideal candidate should have. The specification for a

manager's job should not list six-plus years of experience and a master's degree

in finance when three years of experience and a bachelor's degree in business

would suffice.

© 2011 SHRM


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Guidelines for Writing Job Descriptions and Specifications Job descriptions and specifications must be based on the specific duties and

responsibilities actually performed within an organization. A number of

standard job description packages (both paper and computer) are available.

These packages can help the HR generalist establish consistency in a smaller

firm without starting from a blank page. Some basic things to pay attention to

when writing job descriptions and specifications are listed in Figure 32.

Tips for Writing Job Descriptions and Specifications

• Do give jobs realistic, descriptive titles.

• Do identify the FLSA exempt or nonexempt status.

• Do keep the summary brief (no more than four or five sentences).

• Do list only principal duties, tasks, or responsibilities.

• Do identify the essential job functions. (Note: Nonessential functions can be included as long as the employer indicates which functions are essential and which are not.)

• Do review the knowledge, skills, and abilities to be sure they are job-related.

• Do secure approvals and dates.

• Do include appropriate disclaimers such as "other duties as assigned" or the "job description may be changed at any time."

• Don't include any demeaning titles (e.g., "junior," "clerk").

• Don't include gender-specific titles (e.g., use "sales" or "salesperson," not "salesman").

• Don't include percentages.

Figure 32. Tips for Writing Job Descriptions and Specifications

Job Competencies

Job competencies axe the knowledge, skills, and abilities (KSAs) and other

personal characteristics that work together to produce outstanding performance

in a given area of responsibility. They are the critical success factors needed to

perform in a particular job or specific functional area." In turn, a competency

model is a set of competencies that together make up a profile for success for a

particularjob.



Competencies are more than basic job knowledge, skills, and abilities. Job

competencies are usually developed over time and represent the compilation of

multiple abilities and traits and knowledge required for success. Competencies

are personal to the employee and are something the employee can take from

project to project, from one position to another, and even from employer to

employer.

Specific competencies vary from organization to organization. But many

organizations are expressing interest in focusing on the competencies that

individuals or teams need to perform jobs rather than on specific tasks,

duties, knowledge, skills, and responsibilities. In fact, a growing number of

organizations use some facets of a competency approach to job analysis. A

critical feature of this approach is aligning competencies with key business

objectives and/or values that can contribute to organizational success. The

characteristics that are valued by an organization and are tied to its vision,

mission, and method of operating are often referred to as core

competencies.

Several methods may be used to identify competencies. Behavioral interviews

are common. Generic lists of competencies may exist for an organizational role.

Professional organizations sometime publish generic lists.

Example: Examples of managerial competencies for a restaurant chain might be: ® Managing staff. ® Providing customer care. ® Promoting open and honest communicat ion, mutual respect, and

strong teamwork. ® Maintaining quality and standards to deliver 100% guest delight. ® Achieving and sustaining profitability.

Example: A core competency for a professional services firm is quality. Quality is demonstrated differently across various jobs within the firm. ® Executive assistant: Collects and summarizes data and produces

accurate monthly reports. « Analyst: Applies cost-benefit principles while developing and

improving key work processes. ® Manager: Resolves issues that affect a project's capacity to achieve

superior results.



Behavioral interviews are discussed in more detail in Section 2-9 of this module,

"Selection and Retention." Module 4: Total Rewards examines competency-

based pay systems.

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Progress Check


1. Which of the following is the BEST example of an essential job function for a senior

shipping specialist in an operations department?

( ) a. Supervise shipping staff to ensure that procedures are followed.

( ) b. Oversee the use of the company van when needed.

( ) c. Accompany HR personnel at local recruiting fairs.

( ) d. Encourage shipping staff to participate in company-sponsored retirement

planning.

Refer to the following information to answer Questions 2, 3, and 4.

A job analysis has identified several knowledge, skill, and ability requirements for salespeople

responsible for selling a product line to national accounts and government agencies.

2. Which of the following is an example of a knowledge requirement?

( ) a. Managing time effectively

( ) b. Overcoming customer resistance

( ) c. Maintaining good relations with customers

( ) d. Identifying product features and benefits

3. Which of the following is an example of a skill requirement?

( ) a. Understanding product advantages

( ) b. Demonstrating product features

( ) c. Knowing government procurement procedures

( ) d. Listing major competitors

4. Which of the following is an example of an ability requirement?

( ) a. Questioning for prospect need

( ) b. Maintaining friendly relations with suppliers

( ) c. Presenting proposals to decision makers

( ) d. Analyzing territory for market potential

© 2011 SHRM


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5. A company has decided to add a small group of direct salespeople to its current inside sales

force and has asked an external consultant to conduct a job analysis to ensure that the direct

sales position contributes to the organizational objective of increasing market share. Which

of the following job analysis factors would help to establish the necessary knowledge, skills,

and abilities of the direct sales function?

( ) a. Job context

( ) b. Job specifications/qualifications

( ) c. Performance criteria

( ) d. New employee orientation

6. The PRIMARY purpose of a work log is to

( ) a. compute the average time needed for key tasks.

( ) b. identify patterns that translate into job responsibilities.

( ) c. determine the attitude of incumbents toward the job.

( ) d. help supervisors rank employees' efficiency.

7. Which of the following is NOT included in a job description?

( ) a. Primary duties and responsibilities

( ) b. Activities performed

( ) c. Rate of pay

( ) d. Working conditions

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1. a (p. 2-132)

2. d (p. 2-129)

3. b (p. 2-129)

4. b (p. 2-129)

5. b (p. 2-129)

6. b (p. 2-131)

7. c (p . 2-138)

© 2011 SHRM


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A/orkforce Planning

ind Employment

1.7 . 1

Recruitment

. ...... , ....... .. ..................


• Assess skill sets of internal workforce and external labor market to determine the availability of qualified candidates, utilizing third-party vendors or agencies as appropriate.

• Identify internal and external recruitment sources (for example, employee referrals, online job boards, resume banks) and implement selected recruitment methods.

• Evaluate recruitment methods and sources for effectiveness.

Develop strategies to brand/market the organization to potential qualified applicants.


• Recruitment sources (for example, Internet, agencies, employee referral) for targeting passive, semi-active,-and active candidates.

• Recruitment strategies.

• Qualitative and quantitative methods and tools for analysis, interpretation, and decision-making purposes.

• Organizational documentation requirements to meet federal and

state requirements.

• Employee records management.

• Employer marketing and branding techniques. •

• Impact of total rewards on recruitment and retention.

• The interrelationships among HR activities and programs across functional greas.

• International HR and implications of global workforce for workforce planning and employment. .SPHR ONLY


Recruitment Objectives and Selection Criteria Recruiting is the process of identifying potential employees and encouraging

them to apply for job openings. The goal is to attract a pool of qualified

candidates, some of whom may later be given job offers.

Attracting the appropriate quantity of applicants is necessary but not sufficient.

The quality of applicants is the critical factor in meeting recruitment goals.

The starting place for determining who is qualified should be a carefully

prepared job analysis, job description, and job specifications. The job analysis

process is particularly important, as it provides the basis for validating the

methods used in making employment decisions. Ultimately, the job analysis,

description, and specifications can make it easier to establish selection criteria,

evaluate applicants, and screen out those who obviously lack the minimum

KSAs needed for the job.

Recruitment Methods and Sources Once an organization understands whom they are trying to recruit, the next step is

to select appropriate sources to identify prospective candidates. The organization

can choose either to look internally within the organization or to seek candidates

externally from the general labor pool.

General considerations in selecting a recruitment strategy include factors such as:

• Location.

• Labor market conditions.

• Level of the position to be filled.

• Pay and benefits.

• Company promotion policies.

• Time and budget constraints.

• Affirmative action goals.

Choosing Recruitment Sources: Internal or External? Ultimately, the appropriateness of the approach (internal or external) depends on

the organization's needs, culture, and philosophy. As seen in Figure 33, both

sources have their advantages. Many experts advocate a balance between the two.



Recruiting Internally Recruiting Externally

Advantages Advantages • Rewards good work of current • Brings new ideas/talent into the

employees organization • Is cost-effective • Helps organization get needed • Improves morale competencies • Can assess known past • Provides cross-industry insights

performance • May reduce training costs • Can result in succession of (experienced hires)

promotions • Helps organization meet equal employment opportunity/affirmative action goals

Disadvantages Disadvantages • Can produce organizational • May result in misplacements

inbreeding; candidates may have a • Increases recruitment costs limited perspective • May cause morale problems for

• Places heavy burden on training and internal candidates development • Requires longer orientation or

• May cause political infighting for adjustment t ime promotions

Figure 33. Advantages and Disadvantages of internal vs. External Recruiting Sources

Internal Recruitment Sources

Organizations strive to fill job vacancies through internal promotions and

transfers. This way, an organization can capitalize on the investment it has

made in recruiting, selecting, and developing its current employees.

Effective sources for internal recruitment from current employees include

job posting, job bidding, skill banks and skill tracking systems, and

employee referrals.

Job posting

- Job posting gives current employees the chance to respond to •

announcements of positions. A posting "should provide a brief description of

the job, including significant job duties and minimum qualifications,

education, and experience.

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Job posting has several advantages.

• Job posting is beneficial to individual career development. It allows all

qualified employees to compete for positions. Further, an internal job posting

can alert candidates to advancement opportunities.

• Job posting is a communications device. By reviewing the postings,

employees can easily see the opportunity for growth and expansion in their

department or elsewhere in the company. Some believe that the success of job

posting is that it allows employees to consider other opportunities within the

company for which they are qualified as well as providing employees who may

be dissatisfied with their job, work environment, or supervisor the opportunity

to make a change to a more satisfactory situation. Employees have an

opportunity to talk with supervisors and learn more about the company.

• Job posting allows a company to reduce recruitment costs. A good job

posting system can reduce costs associated with external recruitment and

turnover.

• Job posting can improve morale. A good job posting system can reduce

complaints as employees see career paths and opportunities for professional

growth. Even if not selected, employees have the opportunity to talk with

supervisors and express an interest in career development opportunities.

• Job posting allows a company to fill open positions from within. A good job

posting system can reduce costs associated with external recruitment and

turnover and reduce complaints that internal candidates were not considered.

• Job posting can accommodate seniority. A good job posting establishes

qualifications and other position requirements and can specify the weighting of

length of service.

• Job posting can facilitate affirmative action goals. Job posting can help an

organization meet placement rate goals. It may provide equal opportunity

advancement for all employees and increase employee awareness of salary

grades, job descriptions, and general promotion and transfer procedures.



Job posting may be accomplished by posting notices on a bulletin board or

communicating position announcements through newsletters, memos, electronic

bulletins, tape audio systems (telephone), or the company intranet.

When truly competitive, job postings can boost employee morale because they

allow individuals to maximize opportunities within an organization. However, if

the posting is primarily for show and the job is given to a preselected candidate,

it can have the opposite effect.

Job bidding

Job bidding allows employees to indicate an interest in a position that they

feel qualified for before one becomes available. An HR professional reviews

the employee's employment history, training, and other work-related

experience to determine if the individual is indeed qualified for the position. If

so, the request is placed into an inventory system and the employee is

automatically considered when a position becomes vacant. "

Typically found in union environments, job bidding encourages employees to be

proactive in improving their knowledge, skills, and abilities. It functions most

effectively when it is part of a comprehensive career development system in

which employees are made aware of available opportunities.

Skill banks and skill tracking systems The human resource information system (HRIS) can be used as a source for

internal recruitment. Through HRIS skill banks and skill tracking systems,

computerized talent or skill inventories can furnish a list of people who have the

needed knowledge, skills,,and abilities. Information systems that include a

complete record of the qualifications of each employee enable organizations to

scan records quickly and locate qualified candidates for vacant positions.

However, it should be noted that skill inventories are only as good as the data

they contain. They can be time-consuming and costly to maintain, so it is wise

to consider carefully the type of data that is collected and used in a skill tracking

system. Many organizations periodically have their employees update their

employee records (e.g., as a part of the performance appraisal process).

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Employee referrals Current employees can be valuable resources for filling job openings; they may

know of good prospects among their families and friends. If they are acquainted

with the job specifications, they will usually prequalify referrals and help

identify people who fit well into the corporate culture.

Employee referrals, especially in large organizations, can supply potential

applicants at reduced cost. In addition to being cost-effective when compared to

external recruiting methods, employee referrals for most occupations generally

result in the highest one-year survival rates.

A word of caution: If the organization has not made sufficient progress in

meeting its affirmative action goals, relying too heavily on employee referrals

may give rise to the argument that the organization is perpetuating existing

patterns of discrimination. One way to negate such an argument is to solicit

word-of-mouth referrals from minority employees. Generally, employee referral

programs are most effective when used in conjunction with other recruitment

methods. This helps to ensure that job opportunities are circulated widely and

that the organization does not lean toward discriminatory hiring practices.

A summary of the commonly used internal recruitment methods is shown in

Figure 34.

Method Description

Job posting Provides a brief description of the job; allows current employees the chance to respond to announcements of positions

Job bidding Allows employees to indicate an interest in a position before one becomes available; places qualified individuals into an inventory system

Skill banks and skill tracking systems

Computerized talent or skill inventories that can furnish a list of qualified people

Employee referrals Current employees supply prospects from among their families and friends for filling job openings

Figure 34. Internal Recruitment Methods



External Recruitment Sources The use of external recruitment sources varies with the type of job and the state

of the economy. Entry-level and hourly positions are often recruited locally.

Professional and technical candidates are usually recruited from a larger labor

market. Candidates for management and executive-level positions are

predominantly recruited nationally and internationally. In periods of high

unemployment, an adequate supply of qualified applicants may be obtained

from the organization's employment office applicants. If unemployment is low,

organizations may need to advertise heavily and seek assistance from sources

such as employment agencies and search firms.

Most organizations use a variety of external sources. A discussion of several

commonly used external recruiting methods follows.

Former employees Former employees who would be likely to fill positions within an organization

include:

• Retirees who might be interested in part-time or full-time positions.

• Employees who left to complete their education or for other reasons such as

to care for young children.

• People who left to assume positions at other organizations.

• People who have been affected by previous downsizing.

One of the advantages of hiring former employees is that their job performance

is known. A disadvantage is the potential for morale problems. This is

especially a concern when someone is rehired at a higher level with more pay

than those who remained with the firm.

Previous applicants People who previously applied but were not selected for positions may also be a

source of candidates. They represent a pool of applicants that an employer can

quickly and easily identify and contact about new openings.

Human resource information systems can make it easier and more efficient to

search resume archives for appropriately qualified candidates.

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Labor unions Labor unions, particularly those in the building trades, construction, and

printing, have typically supplied workers to employers. Workers often meet at a

hiring hall and are sent to employers as needed.

Trade and professional associations Many trade and professional associations and organizations (including minority

trade and professional groups) offer placement services or job clearing-houses to

members.

Career specialties such as banking, finance, oil and gas, engineering,

information technology, human resources, and training and development have

associations that publish and distribute newsletters (in print and/or

electronically) to their members that contain advertisements for jobs.

Advertisements in membership-sponsored public job referral systems such as

those that exist on the Internet can be almost immediate and low-cost.

Employers attending association meetings can talk to potential applicants who

may be working for competitors. Either through informal networking or formal

interviews, such contacts often result in finding valuable employees who require

less training because they are already working in the field.

Walk-ins Most organizations accept applications from individuals who walk into the

organization to apply. This is an informal and relatively inexpensive way to

generate applicants.

The Internet From the employer's perspective, the Internet offers several avenues for

recruiting, ranging from entry-level and hourly employees to professional and

managerial positions. HR staff are integral to directing and managing online

recruitment tools and the hiring and selection processes. HR professionals

promote job openings through, for example:

• The company's Web site.

• Generic job boards.

• Career-specific or professional association boards (e.g., SHRM).



HR staff typically direct the initial screening of electronic applications by

identifying keywords for the system to search, and they review submitted

applications or resumes to determine which candidates meet the qualifications

for the position and should be referred to the hiring manager for further

consideration.

The following are some guidelines for using the Internet for recruiting.

• Attracting job applicants

HR can capitalize on the company's reputation or product image to draw in

large numbers of potential job seekers. Using the corporate Web site, HR can

provide information about jobs, working conditions, and even the corporate

human resource philosophy.

Creating an employment brand and portraying that brand through the Internet

can enhance your recruitment success. Employment branding is discussed later

in this section.

• Sorting applicants

While a distinct benefit of the Internet is making it easy for people to submit

applications, companies can soon get inundated with large volumes of resumes,

many from unqualified candidates. A crucial step here is having software that

can screen out obvious mismatches.

Some organizations have developed sophisticated screening programs allowing

a candidate to fill out and self-score an online application against a model

profile. This is not only valuable for the organization but also lets candidates

know immediately whether or not their score meets a minimum threshold.

• Making quick contact

While software can help with the screening function, it's imperative to make

contact with desirable applicants as soon as possible.

• Establishing rapport and closing the deal

Even with Internet recruiting, hiring a qualified candidate still requires

personal contact. Job applicants often need to be sold on why they should

come to work at the company.



Online job boards offer electronic resume and job-listing banks. Key words (e.g.,

administrative assistant, chemical engineer, advertising executive) are electronically

searchable. Electronic links then allow interested parties to view opportunities, look at

job descriptions and related details, and potentially submit letters and resumes online.

The advantages of Internet recruiting can be dramatic. Some estimates suggest

that hiring through the Internet costs about one-twentieth as much as hiring

through print want ads and other traditional methods. Internet recruiting also

saves time by posting jobs online, taking online applications, and processing

applicants electronically. Some companies report cutting 15 to 20 days from

hiring cycles that traditionally took closer to 45 days.

There is, however, a downside. Companies should consider whether they are

reaching an appropriately broad cross section of applicants in recruiting via the

Internet. The potential for violating antidiscrimination laws looms large. Electronic

screening criteria may reject disproportionate numbers of women, minorities,

people with disabilities, and/or workers over 40. In addition, employers may be

required to retain application information from Internet candidates as "employment

records" for a period of time under federal or state laws.

The Office of Federal Contract Compliance Programs' regulations that define % *a

an Internet applicant include specific requirements for record retention. These

rules apply to federal government contractors and subcontractors only.

Contractors and subcontractors must keep any and all expressions of interest

- v , '<" received through the Internet or related technologies for those individuals

. \ - ̂ considered for a particulanposition. Federal government contractors and '

subcontractors must also retain records of all individuals contacted regarding

.their interest in a particular position/ 1 ' -

For internal resume databases, contractors and subcontractors must maintain a

record of each resume added to the database, including the date each resume

was added. When searching the database, contractors and subcontractors must

' maintain a record of the position for which each search was made, the

substantive search criteria used, and the date of the search.



For external resume database searches, contractors and subcontractors must

retain all expressions of interest considered for a particular position and a

record of the position for which each search of the database was made.

Corresponding to each search, records of the substantive search criteria used,

the date of the search, and the resumes of job seekers who met the basic .:'.

qualifications for the particular position who are considered by the

contractor—regardless of whether the individual qualifies as an Internet

applicant under the regulations—must be retained.

Use of the Internet in employment branding is covered later in this section.

Third-party sources

A variety of third-party sources help employers contact and identify qualified

applicants. Provide third-party sources with your EEO policy statement, and

request a diverse slate of candidates. Third-party sources should also be

expected to adhere to your procedures to assure consistent, nondiscriminatory

practices.

• Temporary agencies

An alternative to regular employees is temporary employees, also called

contingent or contract employees. Since the "employee" is on the payroll of

the temporary agency, employers may avoid some liabilities such as

workers' compensation, unemployment compensation, and benefits. Perhaps

more important, the use of temporary employees allows employers

considerably more flexibility in responding to changing needs than does the

use of regular full-time workers.

• State (public) employment agencies

More commonly known as the local state job service or employment service

center, state (public) employment agencies provide employee screening,

testing, and referral at no cost to the employer. Such agencies are good

places to find applicants who are available, looking for work, and may fulfill

the employer's affirmative action goals.

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• Private employment agencies

Private employment agencies are able to tailor their services to the specific

needs of employers. Most employment agencies work on a contingency fee

basis; the fee is paid by the employer when the client is placed. Care must be

taken in selecting an agency because of significant variation in cost and service.

• Executive search firms

Executive search firms seek out candidates (even those who are not

actively seeking alternate employment) with the required qualifications. As

the name implies, these firms are usually used to fill only executive,

managerial, or professional positions.

Such search firms fall into two groups: contingency firms, which charge a

fee only after the position is filled, and retainer firms, which charge a set fee

whether or not they are successful. Despite often relatively high fees, many

large corporations advocate the use of search firms to locate qualified

candidates who might not otherwise respond to newspaper advertisements or

employment agency solicitations.

• Outplacement firms

Outplacement firms provide support and assistance to displaced employees—

typically those employees who are removed involuntarily because of the

elimination of jobs or performance problems. Services provided generally

include career counseling, resume preparation, interviewing workshops, and job

referral assistance. Some outplacement firms may provide retraining for different

jobs. As such, outplacement firms can provide a good source of job candidates.

Outplacement firms are also discussed in Section 2-10 in this module,

"Organizational Exit."

Media advertising One of the most common methods for contacting applicants is through the

media: newspapers, trade journals and magazines, or radio and television spots.

Media advertising has the potential of reaching a large audience of applicants.

The accuracy and completeness of information provided through media

advertising are positively related to recruitment success.



Effective job advertisements focus on both the position and the image of the

employer.

• The position

A summary description of the position, the qualifications desired, the

conditions of employment, and a statement that the organization is an equal

opportunity employer are essential components. The inclusion of salary

information will depend on the position, what type of organization is

advertising the position, and, to some extent, local practice.

• The corporate image

Recruitment is always a two-way street. Candidates are scrutinizing the

employer as much as the employer is scrutinizing the candidates. Therefore,

media advertising frequently sells the employer to prospective candidates,

with recruitment campaigns designed by advertising agencies.

Educational recruiting Educational institutions are a source of applicants with formal education but

usually minimal full-time work experience. Educational recruiting is done at

both the secondary and college level and career and college fairs.

• Secondary schools

High schools are a source of potential employees for clerical, blue-collar,

service, and other entry-level types of jobs.

• Colleges/universities/vocational schools

Guidelines for conducting an effective school recruitment program include:

® Maintain a recruitment effort on a long-term basis. Establish relationships

with the placement office, faculty members, and alumni.

® Prepare recruiters to discuss career opportunities and the requirements of

specific vacancies within your organization.

® Provide institutions with your EEO policy statement and seek

nondiscriminatory referrals.

® Target recruiting efforts on a few institutions in your area. Recruiting at

predominantly minority institutions, for instance, has become quite popular

in recent years.

® Offer candidates an opportunity to tour your organization's facilities and

speak with current employees in similar positions.

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® Follow up on individual prospects in a timely manner.

® Avoid interviewing merely to retain presence. If you know you have no

opportunities, do not interview and promote unrealistic hiring expectations.

Most universities have a minority liaison who should be contacted.

• Career and college fairs

The job fair, or career conference, enables large numbers of candidates to

talk to a variety of potential employers. College fairs take place on college

campuses. Another variation, the open house, enables a company seeking

new employees in a specific field to hold a recruiting event on its premises

where candidates can talk to managers and possible colleagues and learn

about openings without making a formal application.

School-to-work programs Through school-to-work programs, organizations have the opportunity to

contribute to their communities and to help develop the skilled workforce they

will need for the future.

Statistics show that many job applicants applying at U.S. corporations lack

sufficient basic skills to do the job they seek. (Basic skills are defined as

"functional workplace literacy"—the ability to read instructions, write reports,

and do math at a level adequate to perform common workplace tasks.) Such basic

skill shortages mean that companies must interview and/or test a greater number

of applicants to find qualified workers and must offer remedial training programs.

Business partnerships with students, teachers, and schools can improve the quality

of education for children and better prepare them for the workforce.

Minority recruiting Employers may focus on recruiting more minority candidates by:

• Recruiting at minority colleges.

• Contacting minority trade/professional associations and civic organizations.

• Advertising in the minority press.

• Seeking referrals from minority employees.

• Becoming involved with campus minority organizations (e.g., the Society of

Black Engineers).



Nont rad i t iona l labor poo ls

M a n y other ex te rna l rec ru i t ing sources are ava i lab le and m a y be genera l ly c l a s sed

as nont radi t ional . S o m e of the m o r e c o m m o n non t r ad i t i ona l sources inc lude:

• Churches .

• Former / re t i r ed mi l i t a ry pe r sonne l .

• Genera l n e t w o r k i n g a m o n g p ro fess iona l s .

• "P ink-s l ip p a r t y " a t tendees .

• Pr i son inmates .

• Senior c i t izens.

• W e l f a r e - t o - w o r k p r o g r a m s .

F igu re 35 s u m m a r i z e s the ex te rna l r ec ru i tmen t m e t h o d s .

Method Description

Former employees

Former employees who would be likely to fill positions within organization (e.g., retirees, employees who left voluntari ly for education or other positions, people who were let go through downsizing)

Previous applicants

People who previously applied but were not selected for positions

Labor unions Labor unions (e.g., building trades, construction, and printing) that supply workers to employers

Trade and professional associations

Placement services or job clearing-houses offered to membership

Walk-ins Individuals who walk into the organization to apply

The Internet Uses online technology for recruiting to wide audience; includes electronic resume and job-listing banks

Third-party sources

• Temporary agencies: Provide an alternative to regular employees with temporary employees

• State (public) employment agencies: Provide employee screening, testing, and referral at no cost to employer

• Private employment agencies: Focus on filling nonmanagement professional positions and first-level supervisor jobs

• Executive search firms: Seek out candidates (even those not actively seeking alternate employment) with required qualifications

• Outplacement firms: Provide variety of support and assistance to displaced employees, including career counsel ing, resume preparation, job referral assistance, and retraining

Figure 35. External Recruitment Methods (continued next page)



Method Description

Media advertising Newspapers, trade journals and magazines, or radio and television spots that focus both on the position and the image of the employer

Educational recruiting

Recruiting done at both the secondary and college level; includes fair events where large numbers of candidates can talk to a variety of potential employers

School-to-work programs

Programs allowing organizations to partner with their communities and schools to help develop the skilled workforce they will need for the future

Minority recruiting A variety of recruiting methods and vehicles targeted to reach minorities

Nontraditional labor pools

A wide variety of sources that provide viable pools of job candidates (e.g., churches, former/retired military personnel, networking among professionals, "pink-slip party" attendees, prison inmates, senior citizens, welfare-to-work programs)

Figure 35. External Recruitment Methods (concluded)

Employment Branding Employment branding is the process of positioning an organization as an

"employer of choice" in the labor market. An employment brand creates an image

that makes people want to work for and stay working for the organization.

An employment branding strategy should:

• Create a positive, compelling image of the organization (e.g., social

responsibility, industry reputation).

• Provide a clear and consistent message about what it is like to work at the

organization (e.g., the commitment to innovation, teamwork, work/life

balance, total rewards).

• Encourage the best potential candidates to apply for jobs.

• Reduce your rate of offer rejection.

• Decrease your time-to-fill and cost-per-hire ratios.

• Lower turnover.

• Generate a greater number of employee referrals.

• Generate higher levels of employee engagement.

• Link the employment brand with the company's product brands.

• Give employees a sense of pride in their company.

• Reinforce the public's image of the organization.

2-162 Printed on 30% post-consumer waste recycled paper.

© 2011 SHRM


An organization's value proposition is the foundation of employment

branding. Generally speaking, an organization's value proposition is the value

that an organization can deliver to customers and other constituent groups

(such as employees) within and outside of the organization, where Value =

Benefits - Cost. Using this formula, the value to employees is the benefits they

receive from working at the organization minus the costs (tangible and

intangible).

The value proposition must be aligned with the organizational strategic plan,

, ' vision, mission, and values and-create an image that attracts and retains

people. Further, it must provide an accurate picture of employment for

employees and candidates. Any inconsistencies in the work environment can

erode the credibility of a branding strategy.

Branding is becoming important as the demand for skilled workers increases and

the talent marketplace undergoes significant transformation. Technology is

changing the job-search and recruiting processes, making the need for

employment branding even more important.

Branding for talent is closely tied to supply and demand analyses, which were

discussed in Section 2-5 of this module, "Organizational Staffing Requirements."

Building a brand Employment branding uses the same marketing, communications, and

performance technology used to market products and services to create an

image of what it is like to work at the company. Firms typically use the,

following techniques, collectively or in a selective manner:

• The corporate Web site

• Media ads (e.g., print, television, radio)

• Collateral materials (e.g., brochures)

• Marketing campaigns

• Representation of the company at job fairs, campuses, etc.

• Community events, sponsorships, etc.

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Use of the corporate Web site is becoming an increasingly popular vehicle for

employment branding. Making a Web site easy to navigate and information-rich

are prime factors that help to lure job seekers. Other important Web-site

characteristics that contribute favorably to an employment brand include:

• A world-class design.

• Interactive self-assessment tools.

• Easy access to career opportunities—not layers of screens; job postings that

are well organized.

• Regular updating.

• Integrated return e-mails.

• Opportunity to receive updates via e-mail or "refer a friend."

From an organizational perspective, a corporate Web site should increase

traffic, track results, and build referrals for recruiting efforts.

Recruitment Effectiveness Evaluating the success of an organization's recruitment efforts is crucial.

Without the use of metrics and careful assessment, organizations tend to recruit

the way they always have, possibly without regard to important issues. Figure

36 lists several short- and long-term considerations that can be studied for

overall recruiting or on a per-source basis for more accurate feedback.

Short-Term Considerations Long-Term Considerations

• Average time required to recruit • Performance of hires applicants • Turnover

• Selection and acceptance rates of • Absenteeism per hire applicants • Training costs

• Cost per applicant hired • Quantity of applicants • Quality of applicants • EEO implications

Figure 36. Considerations for Recruiting Effectiveness

It is important to note that the most effective recruitment sources are not necessarily

the most expensive ones. For example, employee referrals are fairly inexpensive,

and they have a positive impact on satisfaction, performance, and retention.


© 2011 SHRM


Organ iza t ions shou ld eva lua te rec ru i tment s t ra teg ies aga ins t ob j ec t i ve cr i ter ia .

Wi th the use of app ropr i a t e metr ics , the a l i gnmen t o f H R rec ru i t ing e f fo r t s wi th

bus iness needs can be demons t r a t ed .

F igure 37 out l ines s o m e of the y ie ld rat ios that can he lp q u a n t i f y r e c r u i t m e n t

e f for t s .

Evaluating Recruiters Evaluating Recruitment Sources.

Number of applications processed

Hires produced

Applicant reactions

Eventual success on the job by those recommended for hire by a recruiter

Formula Example

Total cost

Cost per hire

Number of applicants generated

Yield ratios (see below)

Eventual job tenure

Performance of hire on the job

Time-lapse data

Formula Example

Qualified applicants 100 33% yield ratio

Offers extended 5 = 33% yield ratio

Total applicants 300 33% yield ratio

Qualified applicants 15 = 33% yield ratio

Minority applicants Total applicants

80 _ 300 ~

27% yield ratio Offers extended Final interviews

5 10

= 50% yield ratio

Female applicants Total applicants

185 _ 300 ~

62% yield ratio Offers accepted Offers extended

3 _ 5 ~

60% yield ratio

Figure 37. Measuring Recruitment Activities

Yield ratios can be calculated at various stages in the recruitment process as

w e l l as at the end. These ratios can determine w h i c h recruitment source or

method or type o f recruiter produces the greatest y ie ld and ident i fy areas that

m a y n e e d improvement.-



Analyzing the Cost of Recruiting Recruitment costs must be weighed against both short- and long-term

consequences. For instance, from a short-term perspective, continuous efforts

(as on college campuses) may be more expensive than intensive, last-minute

efforts. However, continuous strategies may pay off over the long haul by

providing a ready pool of qualified applicants. A lack of applicants can be

costly in terms of not filling the position (with a qualified applicant) or in terms

of what it takes to increase the applicant pool (e.g., raising salaries).

When calculating costs, take into account both direct and indirect expenses as

compared to the benefits. Direct expenses include advertising, recruiters'

salaries, recruitment materials, training costs, agency fees, etc. Indirect expenses

include involvement of managers, impact on coworkers of unfilled vacancies,

etc. The benefits of each recruitment method are related to the length of time

needed to fill a post through various methods, the number of qualified

applicants generated, the effect on staff time, the ability to meet the

organization's EEO/affirmative action goals, etc.

Figure 38 shows possible yield ratios and cost-per-hire data for several different

recruitment sources.

College/ Employee Newspaper Executive University Referrals Ad Search Firm

Resumes generated 200 50 500 20

Interview offers accepted/yield ratio

175/88% 45/90% 400/80% 20/100%

Judged acceptable/ yield ratio

100/57% 40/89% 50/13% 19/95%

Accepted offers/ yield ratio

90/90% 35/88% 25/50% 15/79%

Cumulative yield ratio*

90/200 or 45%

35/50 or 70%

25/500 or 5%

15/20 or 75%

Cost per source $30,000 $15,000 $20,000 $90,000

Cost per hire $333 $428 $800 $6,000

*Note: The cumulative yield ratio refers to the number hired as compared to the total number of resumes generated.

Figure 38. Yield Ratios and Recruitment Sources



By looking at recruiting data in an organized way, you can analyze the cost and

effectiveness of your recruiting sources. For example, in Figure 38 you may

conclude that while newspaper ads generate many responses, relatively few

applicants are qualified.

EEO Implications Consistency of recruiting procedures is a primary defense against EEO

discrimination claims. Thus, once an employer sets up a recruiting system or

practice, it should adhere to it. If, for example, an employer has a practice of

internally posting all jobs in salary grades 1 through 10 before considering external

candidates and any exceptions require the approval of a designated member of

senior management, the practice should be followed in all circumstances.

The following content on international recruiting has been identified by the HR Certification Institute in the body of knowledge as pertaining to SPHR certification only. Questions related to this content will appear on the SPHR exam only.

International Recruiting Organizations recruit employees for international assignments through a variety

of channels. Similar to recruiting efforts for domestic positions, an organization

may use both internal and external sources to fill international openings.

Internal Recruiting A common source of international recruiting is within the firm itself. Internal

recruits may be from within domestic or global operations.

Internal job postings and the use of succession planning data are common sources

of internal candidates, along with data from an organization's recruitment and

management software, human resource information system (HRIS), or human

capital management system (HCMS). Employees also seek out open positions,

motivated by building new skills and leadership development.

External Recruiting International candidates from outside an organization may be found through a

wide variety of sources. Figure 39 lists a number of common external recruiting

methods and channels.



External Recruiting Sources General Description

Advertising (print and nonprint media)

Print publications (e.g., worldwide editions of the Wall Street Journal, the Economist, and the Financial Times, airline magazines, and local and regional press), kiosks, billboards, radio ads, and television ads

Agencies Vendors who provide prescreened candidates quickly; both in-country and global firms

Career sites (on an organization's Web site)

Interactive use of the organization's Web site for branding, communication, and relationship building (e.g., posting current employee profiles and providing opportunities for individuals to create a profile)

Community awareness Approaches that increase awareness of the organization's brand and identify it as a premier place to work (e.g., participation in community volunteer programs, humanitarian events, local job fairs, local school events)

Contract agencies Offer a pool of workers (usually highly skilled engineers, specialists, etc.) supplied for long-term projects; under contract between the organization and technical services firms

Educational institutions Postings on college, university, and trade school Web-site job boards, on-site job fairs, and on-site interviews

Global internships (1) Partnering with global exchange programs to get access to interns, or (2) recruiting entry-level talent to enter structured competitions to gain access to fast-track employment programs and career paths

Government agencies Online and on-site conduits between employers and job seekers

International job boards (bulletin boards)

Job boards available on the Internet

Intraregion recruiting Sourcing for specific skills (e.g., language and cultural skills) in a specific country for positions that cannot be filled by local hires (e.g., recruiting in eastern European countries for positions in Romania and in Singapore for positions in China)

Online social networks and blogs

Online sites such as Facebook, H3, Linkedln, MySpa.ee, and Zoomlnfo used to expand an organization's talent database, extend the employment brand, and acquire top talent

Outplacement services Services that maintain job sites or job boards for individuals displaced due to layoffs

Personal networking Contacting and developing relationships with people in various locales who can share information, names, and other data that can help identify prospective candidates

Figure 39. Common External Recruiting Sources for International Candidates (continued next page)


© 2011 SHRM


External Recruiting Sources General Description

Referrals Candidate referrals from recent hires, current high performers, retirees, high performers who have left the organization, and association colleagues; may include cash or nonmonetary incentives for referral hires; many organizations have overseas referral programs

Temporary agencies A contract relationship with an external staffing firm to supply talent through different service arrangements (either finite employment or temp-to-hire programs)

Trade and professional associations

Various placement services of specific trade and professional associations (e.g., online boards, publications) where employers can post/advertise positions

HR associations Online boards and publications of HR associations where employers can post/advertise positions, such as the Society for Human Resource Management (SHRM) in the U.S. and the Canadian Council of Human Resources Associations (CCHRA)

Source: SHRM Global Learning System: Global Talent Acquisition and Mobility. Alexandria, Virginia: Society for Human Resource Management, 2009.

Figure 39. Common External Recruiting Sources for International Candidates (concluded)

Not all techniques are effective or culturally appropriate in all countries. An

example is Internet recruiting, or e-recruitment. It can pose significant issues

related to data privacy, and it may be less effective in cultures that value face-

to-face communications over technology. In some cultures, it is inappropriate to

post a resume on a Web site.

U.S. organizations are well advised to supplement their general recruiting with some

targeted recruiting focusing on women and/or minorities. For example, consider

posting notices of job opportunities with organizations made up of and/or geared

toward women or certain minority groups, for example, the National Association of

African Americans in Human Resources and the National Society of Hispanic MB As.

Targeted recruiting should supplement, not supplant, more general recruiting.

Otherwise the targeted recruiting may be seen as evidence of bias.

This concludes the SPHR-level content on international recruiting.

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Progress Check


1. A benefit of job posting is that it

( ) a. provides a cost-effective way to reach the largest number of applicants at one

time.

( ) b. provides an easy way to create a personnel database for job vacancies.

( ) c. allows individuals to maximize career opportunities within an organization.

( ) d. allows employees to indicate interest in a position that is currently filled.

2. A large employer generally has seven or more applicants per job. Recently, the firm was

surprised by a lack of response to newspaper advertisements, resulting in several positions

remaining unfilled for weeks. To expand their recruiting efforts, the firm should utilize all of

the following steps EXCEPT

( ) a. college and career fairs.

( ) b. the state employment service.

( ) c. employee referrals.

( ) d. job bidding.

3. Which of the following recruitment methods allows candidates to talk to employers about an

opening without making a formal job application?

( ) a. Executive search firms

( ) b. Public employment agencies

( ) c. Employee referrals

( ) d. Career fairs

4. All of the following are good examples of employment branding on a corporate Web page

EXCEPT

( ) a. an offer to receive periodic updates about career development.

( ) b. a link to information about balancing work and family life.

( ) c. information about a pro bono engagement to help the Special Olympics.

( ) d. a chance to win free flying lessons for submitting a qualified resume.


© 2011 SHRM


5. Which of the following is a long-term consideration when evaluating the effectiveness of a

recruitment program?

( ) a. EEO implications

( ) b. Recruitment costs

( ) c. Relative performance on the job

( ) d. Quantity or quality of applicants

Refer to the following information to answer Questions 6, 7, and 8.

A company begins with 600 job applicants, narrows the field to 30 qualified applicants, and

schedules 30 final interviews. They offer employment to ten applicants and hire six.

6. What is the yield ratio of qualified applicants to total applicants?

( ) a. 5%

( ) b. 18%

( ) c. 20%

( ) d. 30%

7. What is the yield ratio of offers to final interviews?

( ) a. 10%

( ) b. 30%

( ) c. 33%

( ) d. 50%

8. What is the yield ratio of hires to offers?

( ) a. 10%

( ) b. 60%

( ) c. 70%

( ) d. 73%

Refer to the following information to answer Questions 9 and 10.

A company receives 250 responses to its job advertisement. They interview 95 qualified

applicants, 20 of whom are African-American. Jobs are offered to two African-Americans from

this group, but only one accepts the position.



9. What is the yield ratio of offers extended to African-Americans to qualified African-

American applicants?

( ) a. 5%

( ) b. 10%

( ) c. 15%

( ) d. 20%

10. What is the yield ratio of African-American new hires to qualified African-American

applicants?

( ) a. 5%

( ) b. 10%

( ) c. 15%

( ) d. 20%




1. c (p. 2-150)

2. d (p. 2-151)

3. d (p. 2-160)

4. d (p. 2-163)

5. c (p. 2-164)

6. a (p. 2-165)

7. c (p. 2-165)

8. b (p. 2-165)

9. b (p. 2-165)

10. a (p. 2-165)

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Vorkforce Planning

nd Employment

.8

Flexible Staffing

I f i l l

i i

•


• Assess skill sets of internal workforce and external labor market to determine the availability of qualified candidates, utilizing third-party vendors or agencies as appropriate.

• Identify internal and external recruitment sources.


• Recruitment sources.

• . Recruitment strategies.

• Staffing alternatives.

urce: HR Certification Institute

£


Flexible Staffing Alternatives No workforce planning and employment strategy is complete without

consideration of flexible staffing alternatives. Also referred to as alternative

staffing, flexible staffing uses alternative recruiting sources and workers who

are not regular employees. Many staffing approaches are possible other than

conventional full-time arrangements where the organization directly hires,

supervises, and provides compensation and benefits to regular employees.

Today's labor market presents many situations where flexible staffing

alternatives are appropriate. To name but a few scenarios:

• Shortages of available workers for open positions

• Seasonal peak demand businesses

• Operational upturns and downturns that make permanent head count

impractical

• Special projects that demand specific requisite skills

As organizations look for cost-effective and creative ways to recruit just-in-time

talent and ensure the organization's success and growth, flexible staffing offers

employers several desirable alternatives.

Types of Flexible or Alternative Staff No one-size-fits-all solution to flexible staffing exists. Many organizations benefit

from employing a variety of flexible staff simultaneously. Figure 40 on the next

page summarizes key characteristics for some of the more prevalent types of

flexible staff, organized according to whether the employees are on an

organization's payroll or administration functions are outsourced to staffing firms.

Independent contractors provide another type of flexible staff alternative.

They are self-employed individuals hired on a contract basis for specialized

services. Independent contractors generally have a high degree of independence,

judgment, skill, and discretion. They are compensated on a contract or fee basis

and issued a Form 1099.

The discussion of the Fair Labor Standards Act (FLSA) in Section 4-1 of

Module 4: Total Rewards examines employee status versus independent

contractor status in more detail.



Staff Option Description

Flexible Staffing Administration by the Organization

Temporary assignments

Employees hired to work on a specified job to supplement the regular workforce on a short-term basis or for a specific period of time.

Temporary employees— floaters

Employees hired to work directly on the company's payroll on a short-term basis or for a specific period of time to rotate among several positions or departments as needed.

On-call workers Employees who report to work only when needed.

Part-time employees

Employees scheduled to work less than a regular workweek on an ongoing basis; benefit eligibility depends on various factors (e.g., number of hours worked).

Seasonal workers

Flexible Staffing >

Finite temporary help

Part-time or "casual" workers hired to perform seasonal work in a variety of industries (e.g., agriculture, construction, tourism, and recreation); may or may not be eligible for benefits (e.g., workers' compensation and unemployment).

Vdministration Outsourced

Workers who are recruited, screened, and employed by a temporary help firm; the temporary firm assigns individuals to work at client sites for a finite duration (e.g., to cover an employee's medical/maternity leave).

Temp-to-hire programs

Workers hired on a temporary basis (usually through a temp firm) with the understanding that they may be offered regular employment if they perform competently for a specified time.

Contract workers Highly skilled workers (e.g., engineers, data processing specialists) supplied for long-term projects; under contract between the company and a technical services firm.

Figure 40. Types of Flexible Staff

Types of Flexible or Alternative Staffing Arrangements E m p l o y e r s can d e f i n e the i r r e l a t ionsh ip w i t h s t a f f i ng f i r m s t h r o u g h d i f f e r e n t

se rv ice a r r angemen t s . T h e cho ice o f a pa r t i cu la r f l ex ib le a r r a n g e m e n t d e p e n d s

on a va r i e ty o f opera t iona l , f inanc ia l , and legal f ac to r s , i nc lud ing :

• T h e f u n c t i o n to b e p e r f o r m e d .

• T h e level o f supe rv i s ion requi red .

• T i m e cons t ra in ts (e.g. , f o r recru i t ing , to ge t the j o b done ) .

• F inanc i a l cons t ra in ts .

• C o n c e r n s abou t legal r i sks and l iabi l i ty.



I n f o r m a t i o n on spec i f i c opera t iona l , f inancia l , and legal cons ide ra t ions is

c o v e r e d later in this sect ion.

T h e m o r e p reva len t f lex ib le s t a f f ing service a r r angemen t s are s u m m a r i z e d in

F igu re 41 .

Service Arrangement Description

Payrolling A company needing help identifies specific people and refers them to a staffing firm, which employs them and assigns them to work at the company; arrangement is usually at a lower cost than traditional (finite) temp help.

Employee leasing or professional employer organization (PEO)

In an explicit joint venture, a company transfers all or substantially all employees at a discrete site or facility to the payroll of an employee leasing firm; the PEO leases employees back to the company while handling most of the HR administrative functions (e.g., payroll, benefits, personnel records management).

Temp-to-lease programs

A company contracts with two (usually affiliated) staffing firms— generally a temp service and a PEO; the temp firm assigns long-term temporaries to a client company and, after a period of time, the employee is promoted to lease status and becomes eligible for benefits from the PEO.

Outsourcing or managed services

An independent company with expertise in operating a specific function contracts with a company to assume full operational responsibility for the function (as opposed to just supplying personnel); functions may be peripheral to the core business (e.g., security, landscaping, food services) or closer to operations (such as managing all flexible staffing programs or the IT function).

Figure 41. Types of Flexible Staffing Arrangements

R e c e n t l y , the t e rm " f r e e a g e n c y " has been used to co l lec t ive ly desc r ibe a

n u m b e r of w o r k e r s e m p l o y e d u n d e r f l ex ib le s t a f f ing a r r angemen t s . Of f i c i a l l y ,

the B u r e a u o f L a b o r Stat is t ics has no " f r e e a g e n c y " c lass i f ica t ion . Ins tead , the

a g e n c y l u m p s toge ther on-ca l l worke r s , i ndependen t con t rac to rs , and " w o r k e r s

p r o v i d e d t h rough con t rac t f i r m s " into a ca t egory cal led "non t r ad i t i ona l

w o r k e r s . " O the r de f in i t ions va ry sl ightly. S o m e c o n f u s i o n exis t s as to the

de l inea t ion b e t w e e n f r ee agents , f l ex ib le s taff , con t rac tors , t e m p o r a r y w o r k e r s ,

and con t ingen t worke r s . T h e c o m m o n a l i t y charac te r i z ing all o f these w o r k e r s

is tha t they are not c o m p a n y e m p l o y e e s .



HITs Role in Flexible Staffing Once an organization decides on a flexible staffing arrangement, the terms of

the contract must be put into writing. Certainly, the substance of any flexible

staffing agreement is straightforward: to produce skilled and qualified people to

perform specific tasks. But reaching consensus on the specific mechanics of the

arrangement requires much attention to detail.

It has been said that agreements do not create an understanding; they record it.

Thus, the best agreement is one that accurately and precisely reflects the

underlying transaction. Depending on the staffing alternative, HR may need to

work with legal counsel experienced in writing staffing contracts when

orchestrating the terms for flexible staffing.

The terms of a flexible agreement will naturally vary depending on the

circumstances. But there are a few general guidelines that can be helpful.

• Be cautious of preprinted or standard forms. You must understand and

agree with everything in the agreement; anything you don't understand

should be explained to satisfaction or it should be eliminated.

• Ensure clarity. An agreement should be simple and straightforward.

Respective rights and obligations of both sides must be defined. Ambiguous

provisions subject to later interpretation are dangerous.

• Negotiate competitive pricing. Ask for volume discounts, rebates based on

usage, and free value-added services.

• Consider including an alternative dispute resolution (ADR) provision.

It 's wise to be prepared should disputes arise.

• Include a simple opt-out procedure. Be wary of fixed-term agreements.

The company should be able to opt out of an agreement if dissatisfied for

any reason.

• Negotiate clear and precise provisions for what happens when the

agreement expires or the relationship ends. Spelling out terms of the

closing can help to prevent unnecessary litigation.

2011 SHRM 2-179 Printed on 30% post-consumer waste recycled paper. ©


Co-Employment Issues The term co-employment, or joint employment, generally describes a situation

in which an organization shares joint responsibility and liability for their

alternative workers with the alternative staffing supplier. A co-employment

agreement summarizes the legal relationship, rights, and obligations for some

flexible staffing arrangements.

Potential liability can vary dramatically depending upon the nature of the

staffing agreement. In traditional temporary staffing models, the staffing firm

and the client company are most likely viewed as co-employers or joint

employers under most employment law regulations.

The less control one entity has over the terms and conditions of employment,

the more difficult it becomes to prove that a co-employment relationship

exists.

Legal Considerations The risk of assuming that an individual will not be regarded as your

employee is significant. Organizations that misclassify workers can, for

example, be required to pay back taxes and also to provide workers with

retroactive benefits available to regular employees.

Both temporary staffing firms and their clients may be considered

employers.

The EEOC provides detailed enforcement guidance as a supplement to the

agency's compliance manual. The additional guidance focuses primarily

on:

• Liability of staffing firms and their clients for violations of all federal

antidiscrimination laws.

• Allocation of responsibilities between employers and staffing firms.

• Clarification of unique ADA issues such as the types of disability

interview questions that are permissible after an offer has been made.

• Requirements and responsibilities for reasonable accommodation.

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© 2011 SHRM


Employers should visit the EEOC's Web site, www.eeoc.gov, and review the

following publications:

• "Enforcement Guidance: Application of EEO Laws to Contingent Workers

Placed by Temporary Employment Agencies and Other Staffing Firms,"

www.eeoc.gov/policy/docs/conting.html

• "EEOC Enforcement Guidance on the Application of the ADA to

Contingent Workers Placed by Temporary Agencies and Other Staffing

Firms," www.eeoc.gov/policy/docs/guidance-contingent.html


http://www.eeoc.gov

http://www.eeoc.gov/policy/docs/conting.html

http://www.eeoc.gov/policy/docs/guidance-contingent.html


Progress Check


1. "Floaters" are BEST described as

( ) a. employees scheduled to work less than a regular workweek on an ongoing basis.

( ) b. self-employed individuals hired on a contract basis for specialized services.

( ) c. people employed directly on a company's payroll on a short-term basis or for a

specific period of time to rotate among several positions or departments.

( ) d. long-term temporaries assigned to a client company.

2. Under which flexible staffing option would a professional employer organization (PEO) be

most likely to provide temporary workers with benefits?

( ) a. Payrolling

( ) b. Master vendor arrangement

( ) c. Outsourced or managed services

( ) d. Temp-to-lease programs

3. A potential advantage of a small firm outsourcing its payroll function is

( ) a. increased continuity rather than having various staff members perform the

function.

( ) b. the outsourcing company's employees will be paid only for time worked.

( ) c. less supervisory time on the part of the HR generalist.

( ) d. the outsourcing company's knowledge of payroll processing and administration.

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© 2011 SHRM



1. c (p. 2-177)

2. d (p. 2-178)

3. d (p. 2-178)

© 2011 SHRM


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)rkforce Planning

d Employment

Selection and Retention


• Develop and implement selection procedures, including applicant tracking, interviewing, testing, reference and background checking, and drug screening.

• Develop and extend employment offers and conduct negotiations as necessary.

• Administer post-offer employment activities (for example, execute employment agreements, complete 1-9 verification forms, coordinate relocations, schedule physical exams).

• Develop/ implement, and evaluate retention strategies and practices.


• Interviewing techniques (for example, behavioral, situational, panel).

. • Use and interpretation of selection tests (for example, . psychological/personality, cognitive, motor/physical

- assessments, performance, assessment center).

• Internal workforce assessment techniques and employment policies, practices, and procedures.

• Reliability and validity of selection tests/tools/methods.

• Negotiation skills and techniques.

• Relocation practices. •

W O R K F O R C E P L A N N I N G AND E M P L O Y M E N T Section 2 10

The Selection Process Once human resources and line managers have identified a pool of qualified

applicants, they need to gather the balance of information necessary to make a

selection decision. Selection is the process of hiring the most suitable candidate

for a vacant position.

As shown in Figure 42, the selection process involves a series of filters designed

to narrow the field of applicants down to a select few. At each stage of the

process, more information is gathered about prospective candidates so that

employers can match prospective employees' qualifications to the requirements

of the organization.

Selection Step 1: Analyzing application forms

Step 2: Interviewing

Step 3: Testing and background investigation.

Figure 42. The Selection Process

Not all organizations conduct all of the steps in the order indicated in Figure 42

for each job. However, this is an example of the selection process used by

many companies. A discussion of each of these steps follows.

©2011 SHRM _ 2-186 Printed on 30% post-consumer waste recycled paper. ®


After recruitment has occurred, the first filter under selection involves analyzing

the candidates' application forms and/or resumes and identifying applicants who

fit the minimum selection criteria. Another use of the application form or resume

is to provide a source of questions for the interviewer as well as a source for

reference checks. Efficient prescreening by HR management at this stage means

that line management's time can be spent interviewing only qualified candidates.

Types of Application Forms Many employers use only one application form, but this practice may not serve

the full range of needs. A variety of application forms may be better.

In some instances, an organization operating in more than one state may find it

necessary to have different application forms because of differences in state

laws on fair employment practices.

Types of application forms include the following:

• Short forms

A short form may be used for preliminary screening or prescreening

interviews. It would include only minimal background information about

candidates. (With the increased use of the Internet as a recruiting source,

many companies have included candidate profiles or "electronic applications"

on their Web sites as a prescreening device. These should be considered as

short form applications subject to the same legal considerations.)

• Long forms

,A long form may be used for in-depth interviews. It would include detailed

information about a candidate's qualifications.

• Targeted application forms

These forms are designed to gather job-related information for a specific

position or profession.

• Weighted application forms

These forms are developed with job analysis data. After determining the

knowledge, skills, and abilities needed to perform a job, numerical values

© 2011 SHRM


2-187


are assigned to the responses on the form. An applicant's responses are then

scored and tallied. Such forms require considerable time and effort to create

and update. Furthermore, they may inadvertently violate EEO guidelines

and should be used cautiously.

• Resumes

Resumes are often prepared by candidates (or by a professional hired by the

candidate) to highlight their strengths and experience. Even though the

candidate may supply information regarding age or other characteristics that

would be illegal for the employer to request, employers may not use these

facts when making a selection. Candidates who supply resumes should also

be asked to complete an application form. If the applicant has exaggerated

on the resume, these problems may be identified on the application form.

More importantly, the application form itself will frequently have a

statement that asks the applicant to sign and verify that the information is

correct. The form also identifies consequences (such as termination) if the

information is found to be false.

Application Form Elements The application form should include:

• Basic personal data (name, address, phone number, contact information).

• Confirmation that the applicant is a U.S. citizen or is otherwise authorized to

work in the U.S.

• Previous application or work experience with the employer.

• Criminal convictions (subject to specific limits based on federal and state law).

• Education or training.

• Special skills.

• Work history (including dates of employment).

• References.

• Authorization to check references.

• Employment-at-will and other waivers.

• The organization's EEO statement.

• Signature of applicant.

• Authorization to verify all information provided.

• Confirmation by applicant regarding truthfulness and completeness of

information provided.

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© 2011 SHRM


Some of the key issues to watch for that may require further explanation are:

• Insufficient education or experience to fulfill the minimum job requirements.

• Significant unexplained gaps in employment history.

• Frequent job changes.

• -A downward spiral of jobs with less and less responsibility and authority.

• Blanks.

A well-designed application form serves as a prescreening device. But both the

EEOC and the courts have found that some questions asked on application

forms may have a disparate impact on certain groups of applicants, for example,

inquiries regarding height and weight, arrest records, marital status, or child-

care provisions. Care should be taken to ensure that inquiries are job-related and

that an individual's privacy or other rights as prescribed by federal or state laws

are not violated. Application forms should be analyzed by the firm's legal

department or outside counsel for their EEO impact.

Applicant qualifications should always be compared to the job requirements

identified in the job description. The most important factor is that applications

request information that is critical to job success.

Although not illegal to request the information, caution should be exercised with

the request for Social Security numbers on an application form. Application forms

may be viewed by individuals who do not have a need to know this information yet

are unintentionally given access during the selection process. Due to the increase

in identity theft and privacy violation claims, as well as the enactment of state laws

protecting the use and disclosure of Social Security numbers, employers should

strictly limit access to both applicant (and employee) Social Security numbers and

other personally identifiable information.

Prescreening Phone Call A telephone call to clarify a few points on the application form can be a time-

effective way to prescreen candidates. In a few minutes, interviewers can

ascertain the candidate's background, experience, and continued availability.

The call also gives the interviewer a chance to describe the job in greater detail

and answer questions. At that point, if both parties are still interested, the

candidate may be asked to come in for a prescreening interview.

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Applicant Notification The timing and the steps that provide a transition between the recruitment and

selection processes are very important. Whenever possible, the organization should

keep applicants informed of their status and should avoid any significant time

lapses. For example, with Internet recruiting, delays in making contact with a

prescreened qualified job seeker may lead to the most desirable candidates being

hired by another firm.

Research has also shown that both the recruiter and the administrative process can

have an impact on applicant reactions and the subsequent positive or negative

attitudes of the applicants toward the organization. Organizations are not legally

bound to notify applicants of their status, but as a matter of professionalism and

concern for corporate image, this should be considered a priority.

Step 2: Interviewing Selection interviews are designed to probe areas of interest to the interviewer in

order to determine how well the candidate meets the needs of the organization.

Organizations tend to rely on interviews for qualifying candidates more than any

other procedure in the selection process. Therefore, it is important that

interviewers are properly trained in interviewing techniques and skills. Attention

to this area could undoubtedly improve the validity of the selection process. The

courts and the EEOC consider the interview a selection device.

Types of Interviews Some organizations conduct a series of interviews ranging from short

prescreening interviews (20 minutes or less) to long in-depth interviews (one hour

or more). Interviewing styles depend upon the preference of the interviewer and

the situation, but consistency of interviewing practices must be maintained.

Prescreening interviews Prescreening interviews are useful when an organization has a high volume of

applicants for a job and face-to-face interviews are needed to judge

prequalification factors. These interviews are usually conducted by HR.

In-depth interviews In-depth interviews are generally conducted by line management. Some organizations

require several in-depth interviews by both line managers and potential colleagues.

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© 2011 SHRM


Styles of in-depth interviews vary. HR may also conduct in-depth interviews,

depending on the level of the open position.

• Structured interview

In a structured interview, the interviewer asks every applicant the same

questions; follow-up probes, however, may be different. This type is also

called a repetitive interview. In general, structured interviews are

preferable to unstructured ones. While structured interviews may reduce

spontaneity, they ensure that similar information will be gathered from all

candidates. This makes it possible to compare qualifications and reduce

equity concerns.

• Patterned interview

During patterned interviews, the interviewer asks each applicant questions

that are from the same knowledge, skill, or ability area; the questions,

however, are not necessarily the same. For example, the questions asked of a

college graduate might differ from those asked of a candidate having

relevant job experience. This type is also called a targeted interview.

• Stress interview

In a stress interview, the interviewer assumes an aggressive posture to see

how the candidate responds to stressful situations. This style is used

extensively in law enforcement, air traffic control, and similar high-stress

industries.

• Directive interview

In directive interviews, the interviewer poses specific questions to the

candidate and keeps control. This type of interview is highly structured.

• Nondirective interview

In nondirective interviews, the interviewer asks open questions and

provides general direction but allows the applicant to guide the process. A

response to one question indicates the next question the interviewer asks.

This open interview style is often used in counseling situations. It may be

less appropriate in selection interviews because it is difficult to maintain the

job-relatedness of questions and ensure that similar questions are asked of

each applicant.

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• Behavioral interview

In a behavorial interview, the interviewer focuses on how the applicant

previously handled situations (real experiences, not hypothetical ones). The

employer asks very pointed questions to determine if the individual

possesses the skills necessary for the job. The interviewee gives an example

that illustrates past performance, while the interviewer looks for three key

things—a description of the situation or task, the action taken, and the result

or outcome. For example, an interviewer might ask a candidate for a

management position to describe a situation in which she or he coached a

difficult employee.

The premise is that past performance is the best predictor of future

performance. A behavioral interview provides a more objective set of facts

to use in making employment decisions than other interviewing methods.

The process of behavioral-based interviewing is much more probing than

traditional interview questions.

• Situational interview

In a situational interview, the interviewer asks questions designed to elicit

stories and examples that demonstrate the applicant's skills and qualifications

for the position. The intent is similar to that of a behavioral interview in trying

to predict future behavior. But where behavioral interviews focus on real life

experiences, situational questions describe hypothetical situations and ask a

candidate to comment on how he or she would handle them.

Situational interview questions are helpful when applicants do not have the

necessary experience to describe relevant examples from their past. Questions

probe for responses to simulated situations. For example, an interviewer might

describe a scenario where a team member fails to do his or her share of the

work on a project and then ask the applicant, "What would you do?"

• Group interviews

Two types of interviews are commonly categorized as group interviews.

One type is where there are multiple job candidates that are interviewed by

one or more interviewers at the same time. This type of group interview is

usually done only where the job duties are clearly defined and where



numerous candidates can be informed and/or asked about job requirements,

for instance, an amusement park's requirements for attendance or dress

and/or grooming codes.

The more common type of group interviews is where there are multiple

people in an organization that serve as interviewers for a single job

candidate. Each interviewer serves a different purpose and screens the

candidate for specific qualities (e.g., technical ability, culture fit, leadership

skills, the ability to manage, or the ability to take direction). The number of

interviewers can vary but is usually no more than four or five. An HR

representative may participate in a group interview. For most group

interviews, candidates meet with all interviewers at the same time.

Group interviews can be further described as team interviews and panel

interviews.

A team interview is used in situations where the position relies heavily on

team cooperation. It is akin to a 360-degree process. Supervisors,

subordinates, and peers are usually part of a team interview process.

In a panel interview, structured questions are spread across the group. The

individual who is most competent in the relevant area usually asks the

question (e.g., HR or a manager would ask behavioral questions to assess

the ability to take direction; a peer might ask about knowledge specific to a

project). In some panel interviews, interviewers may play off each other and

ask questions in a "tag-team" style.

Group interviews save time for employers and the candidates. But they can

be threatening situations for candidates. To reduce this threat and to help

candidates loosen up and communicate, consider the role of each participant

and the seating arrangements. The roles of the participants must be planned

to ensure adequate coverage of job requirements. Decide before the

interview what each interviewer will do and how the group will function.

Where the participant sits determines whether the candidate will feel

outnumbered or one of the group. Arranging chairs in a circle, in a curved

pattern, with interviewers' chairs in front of but not surrounding the

candidate's chair, or in living-room style can keep the interview more

conversational and free-flowing.

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Organizations often provide interview training to participants involved in

group interviewing to ensure that they understand the job profile.

Participants should also be briefed on illegal interview questions and how to

avoid revealing proprietary organizational information.

Interviewing Skills and Techniques Conducting successful selection interviews requires a range of skills and

abilities. The following guidelines are recommended.

• Plan for the interview

Determine the job requirements by reviewing the position or job description

to ascertain the knowledge, skills, and abilities necessary for job success.

This also provides an opportunity to update job descriptions if necessary.

The applicant's resume or application should be reviewed and compared to

the job requirements. This provides an opportunity to plan interview

questions that will yield relevant job-based information.

• Establish and maintain rapport.

Establish rapport early in the interview so that the candidates feel relaxed

and are more open to providing honest information.

• Listen carefully.

One important listening technique is called reflective listening. The person

restates the feeling and/or content of what the speaker has communicated in

a way that demonstrates understanding and acceptance. For instance, the

interviewer might paraphrase or summarize what the speaker said.

• Observe nonverbal behavior.

Interviewers should be aware of nonverbal behaviors such as facial

expressions, gestures, body positions, and other movements and should look

for inconsistencies between the candidates' verbal and nonverbal cues.

However, interpretations of nonverbal behavior are subjective and should be

considered with caution due to interviewer biases and cultural norms and

preferences. It should be noted that the candidate will also be assessing the

nonverbal behaviors of organization members.



• Ask questions.

Plan questions to ask. (See the information that follows on legality of

questions.) Focus on asking open, probing questions that encourage candidates

to tell you as much as possible about their qualifications. (Open questions

typically begin with what, where, why, when, or how. Other good open probes

include phrases like "Tell me about. . ." or "Describe for me a time when . . .")

Avoid closed questions unless you need a specific answer to a specific

question. (Closed questions can usually be answered with yes or no.)

• Provide realistic information.

Interviewers should be prepared to provide the candidate with specific

information about job requirements and the organization's philosophies and

practices. A candidate's questions should be answered fully and frankly,

without promises or predictions.

• Note taking

Note taking is strongly recommended to document the qualifications of the

candidate. It is not necessary to ask permission. A separate piece of paper

should be used; the interviewer should never write directly on the resume or

application. Moreover, the interviewer should not make any notes that could

be construed as discriminatory.

• Summarize.

Conclude the interview with a brief summary, telling the candidate what

will happen next.

Guidelines for Interview Questions As noted earlier in regard to application forms, the interviewer must be careful

not to violate an individual's privacy or other rights. If a question is job-related,

it is probably appropriate to ask. If it is not job-related, don't ask it. Questions

that are not necessary to judge an applicant's qualifications, level of skills, and

overall competence to perform the specific job should be avoided in interviews.

Figure 43 outlines some of the things that may and may not be asked during a

selection interview. State civil rights agencies and the EEOC also publish lists

of acceptable and illegal questions.



C a t e 9 o r y M a y A s k Potentially Discriminatory

Gender and family issues

If applicant has relatives already employed by the organization

• Number of children/child-care arrangements

• Marital status • Spouse's occupation • Health-care coverage through spouse • Maiden name (of married woman)

Race No questions may be asked. • Applicant's race or color of skin • Photo to be affixed to application form

National origin or ancestry

• Whether applicant has a legal right to be employed in the U.S.

• Ability to speak/write English fluently (if job-related)

• Other languages spoken (if job-related)

• Ethnic association of surname • Birthplace of applicant/applicant's parents • ' Nationality, lineage, national origin • Nationality of applicant's spouse • Whether applicant is citizen of another

country • Applicant's native tongue

Religion Whether applicant is able to work on the days/times required by the job

• Religious affiliation • Religious holidays observed

Age • If applicant is over age 18 • If applicant is over age 21 if job-

related (e.g., a bartender)

• Date of birth • Date of high-school graduation • Age

Disability Whether applicant can perform essential job-related functions

• If applicant has a disability • Nature or severity of disability • Whether applicant has ever filed workers'

compensation claim • Recent or past surgeries and dates • Past medical problems

Other • Convictions* • Academic, vocational, or

professional schooling • Training received in U.S. military • Membership in trade or

professional association related to the position

• Job references

• Number and kinds of arrests • Height or weight except if a bona fide

occupational qualification • Veteran status, discharge status, branch

of service** • Contact in case of an emergency

(appropriate to ask at post-hire)

* Disclosure of a criminal record does not automatically disqualify an applicant from employment consideration. Each case must be judged on its own merits, based on the job-relatedness, nature, and severity of the conviction and how long ago it occurred.

** The Uniformed Services Employment and Reemployment Rights Act regulations include types of discharges and separations that render an employee unprotected by the act. Employers can ask applicants if they have a discharge that would render them ineligible for reemployment.

Figure 43. Interview Questions

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Interviewer Biases Without training, interviewers may inadvertently create EEO problems or make

inappropriate selection choices by misinterpreting the information they receive

from selection interviews. Interviewers must take precautions to ensure that their

preconceptions don't overly color their judgment. A discussion of some common

factors that may create problems in interviewing follows. These biases are similar

to those covered in the discussion of performance appraisal in Module 3: Human

Resource Development.

Stereotyping Stereotyping involves forming generalized opinions about how people of a

given gender, religion, or race appear, think, act, feel, or respond.

Example: Presuming that a woman would prefer a desk job over working outdoors is stereotyping.

Inconsistency in questioning This involves asking different questions of different candidates.

Example: Inconsistency in questioning might involve asking only Caucasian male candidates to describe their successes on previous jobs.

First-impression error With the first-impression error, the interviewer makes snap judgments and lets

his or her first impression (either positive or negative) cloud the entire interview.

Example: Giving more credence to the fact that the candidate graduated from the interviewer's alma mater than to the applicant's knowledge, skills, or abilities is an example of the first-impression error.

Negative emphasis This involves rejecting a candidate on the basis of a small amount of negative

information. Research indicates that interviewers give unfavorable information

roughly twice the weight of favorable information. Negative emphasis often

happens when subjective factors like dress or nonverbal communication taint the

interviewer's judgment.

Example: An applicant is unable to maintain eye contact during a job interview. The job under consideration involves telemarketing, and all communicat ions with the customer will be via phone. The interviewer rejects the applicant due to the lack of eye contact.

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Halo/horn effect In this situation, the interviewer allows one strong point that he or she values

highly to overshadow all other information. When this works in the candidate's

favor, it is called the halo effect. When it works in the opposition direction,

with the interviewer judging the potential employee unfavorably in all areas on

the basis of one trait, it is called the horn effect.

Nonverbal bias In this situation, undue emphasis is placed on nonverbal cues that are unrelated

to job performance.

Example: Hair length or distracting mannerisms are good examples of nonverbal bias.

Contrast effect With the contrast effect, strong candidates who interview after weak ones may

appear even more qualified than they actually are because of the contrast.

Similar-to-me error This involves picking candidates based on personal characteristics that they

share with the interviewer rather than job-related criteria.

Cultural noise Cultural noise is the failure to recognize responses of a candidate that are socially

acceptable rather than factual. Since the candidate wants the job, he or she will be

reluctant to tell the interviewer unacceptable facts about himself or herself. The

candidate may give responses that are "politically correct" but not very revealing.

Example: An employer may comment, "I note that you are applying for a job that has a lot less authority than the job you currently hold. How do you feel about that?" The applicant might say that this is fine even though this is not the case.

Step 3: Testing and Background Investigation Some organizations test applicants before in-depth interviews, others afterward,

and many don't test at all. Because of EEO concerns, many employers

discontinued testing in the 1970s. Preemployment testing may involve the risk

of litigation on the grounds that the tests discriminate against minorities, the

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disabled, or other applicants if improperly conducted. Yet many HR

professionals think that, if properly conducted, nondiscriminatory formal tests

can be of great benefit in identifying superior candidates.

The general guideline for preemployment testing is like that for any other phase

of the selection process—the test must be a valid, reliable, job-related predictor.

(Validity and reliability are covered later in this section.) Within this guideline,

care must be taken to comply with the Civil Rights Acts of 1964 and 1991 as

well as the Americans with Disabilities Act and any state laws that restrict

preemployment tests. Privacy issues can also affect preemployment testing.

HR should constantly monitor all required preemployment testing and make

every effort to avoid tests that have adverse impact on minority applicants. In

addition, all testing should be monitored to ensure that it relates only to the

essential functions of a job and that reasonable accommodation, if called for, is

made for applicants who may be disabled.

Keep in mind that employers may use a test even if it has disparate impact

on protected classes as long as it conforms to the validation requirements in

the Uniform Guidelines on Employee Selection Procedures.

On December 3, 2007, the EEOC published a new fact sheet on the

application of federal laws to employer tests and other selection procedures

used in screening job applicants for hire (and employees for promotion).

The fact sheet describes common types of employer-administered tests and

selection procedures used in the 21st-century workplace, including cognitive

tests, medical examinations, credit checks, and criminal background checks.

The document also focuses on best practices for employers to follow when

using employment tests and other screening devices.

The fact sheet can be found at www.eeoc.gov/policy/docs/factemployment_

procedures.html.

Section 2-1 of this module provides additional information on the Uniform

Guidelines on Employee Selection Procedures.

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http://www.eeoc.gov/policy/docs/factemployment_


Types of Preemployment Tests Preemployment tests may be broadly categorized in the following manner.

• Cognitive ability tests assess skills the candidate has already learned.

Cognitive ability is a generic term describing the process and results of

thinking or information processing (perception, conceptualization,

problem solving, etc.). Cognitive ability tests measure individuals'

abilities related to verbal and mathematical skills, logic, reasoning, and

reading comprehension as well as capacity to utilize mental processes to

solve work-related problems.

There are several types of cognitive ability tests. Performance tests or

work sample tests that require candidates to complete an actual work task

in a controlled situation are one type of cognitive ability test. For

example, a candidate for a clerical position might be asked to identify the

order of completing a set of five different tasks based on minimal

information provided. Performance tests or work sample tests should be

carefully developed and reviewed by experts to ensure that they include

the major job functions and are content-valid.

• Personality tests attempt to measure a person's social interaction skills and

patterns of behavior. They report what might be described as traits,

temperaments, or dispositions. Many personality inventories are available,

and they are being used more and more frequently. Some focus on

characterizing an individual as being within the normal ranges of adult

functioning. Others focus on identification of abnormal behavior. These

types of tests have been subjected to scrutiny under the ADA.

• Aptitude tests measure the general ability or capacity to learn or acquire a

new skill. For example, a candidate for a factory assembly job may be asked

to take a manual dexterity test.

• Psychomotor tests require a candidate to demonstrate a minimum degree of

strength, physical dexterity, and coordination in a specialized skill area.

These types of preemployment tests should be carefully validated on the

basis of essential job functions. They are appropriate only if the essential

functions of the job require such abilities. While psychomotor tests tend to

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be good predictors of performance, they may also be disadvantageous to

disabled job applicants. In addition, some of these tests may be considered

medical tests and thus will have other ADA implications.

• Assessment centers are not necessarily a place but rather a method of

evaluating candidates. They are content-valid work samples of a

managerial job and are typically used to select internal employees with

potential for promotion to managerial positions. Assessment centers can

range from one day to one week in duration, but they generally have three

characteristics: multiple means of assessment, multiple assessees, and

multiple assessors. In one example of an assessment center, candidates go

through a battery of standardized tests conducted by trained assessors.

Exercises may include pencil-and-paper tests, comprehensive interviews,

individual and/or group simulation activities, in-basket exercises, and

work-related performance tests. The results are evaluated by a panel of

trained assessors.

Many state and local governments and large corporations use such centers

when selecting department or division heads. One advantage of their use is

that it reduces charges of political favoritism. Assessment centers may be

the most expensive selection method in common use. Research indicates,

however, that they predict both short- and long-term success and they do not

produce an adverse impact on either gender or race.

• Honesty/integrity tests measure an applicants' propensity toward

undesirable behaviors such as lying, stealing, taking drugs, or abusing

alcohol. Such tests have been criticized for their possible invasion of privacy

and self-incrimination. Another concern about honesty/integrity tests is the

potential for candidates to interpret the intent of some questions and to

provide "politically correct" answers. Yet, at a time of growing concern

about drug use and misconduct in the workplace, many employers still ask

applicants to complete them.

Other Types of Selection Tests In addition to the aforementioned preemployment tests, two other types of tests

that HR professionals must know about are polygraph tests and substance abuse

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tests. Polygraph and substance abuse tests are fairly controversial due to their

potential for discriminatory problems.

Polygraph tests A polygraph test provides a diagnostic opinion about a person's honesty. The

validity of polygraph tests has been called into question, and this has led to legal

restrictions on their use. The Employee Polygraph Protection Act of 1988

prohibits employers from requiring or requesting preemployment polygraph

exams under most circumstances.

A more complete description of this act is included in Section 2-2 in this

module, "Key Legislation Affecting Privacy and Consumer Protection."

Substance abuse tests Substance abuse tests are measures intended to ensure a drug-free workplace.

Concern about workplace safety issues and alcohol and/or chemical use in the

workplace has prompted many employers to require employees/applicants to

submit to drug tests.

There are various types of drug testing:

• Preemployment testing of applicants

• Random testing of employees

• Periodic, scheduled testing, such as annually

• Reasonable suspicion testing, based upon exhibited conduct or behavior

• Post-accident, triggered by an injury or accident in the workplace

• Post-treatment, fitness for duty following rehabilitation

• Testing pursuant to a return-to-work agreement, as a condition of an

employee's return to work after violation of an employer's substance use

policy

Unless prohibited by state or local law or collective bargaining agreements,

employers have a right to require employees and potential employees to submit

to such tests. Since the results may, in some instances, result in the disclosure of

medical information, confidentiality must be maintained. Other key issues are

the ADA implications and the chain of custody of the sample.



The Drug-Free Workplace Act requires federal contractors with contracts pf

$100,000 or more to certify that they are maintaining a drug-free workplace.

However, conducting drug tests is not one of the requirements under the act.

As a practical matter, the procedural requirements published in the

Department of Health and Human Services regulations should be followed to

lessen the risk that drug tests will be challenged on the basis of improper

handling, validity, or similar issues.

More information on the Drug-Free Workplace Act of 1988 is found in Section

6-2 of Module 6: Risk Management.

Types of Background Checks Many organizations wait to verify information on application forms and check

references until it is decided that the applicant is a good candidate for the job.

Assuming that the best indicator of future performance is past performance, it is

important to check references carefully and, for executive-level positions, early,

to avoid burdening top management by interviewing less-than-fully qualified

candidates.

Background checks should be related to the position being staffed. The Fair

Credit Reporting Act (FCRA) defines how background investigations may be

conducted. Specifics about FCRA are found in Section 2-2 in this module, "Key

Legislation Affecting Privacy and Consumer Protection."

A background investigation can include work reference checks as well as

verification of academic credentials, credit history checks, motor vehicle record

checks, and criminal background checks. An employer should obtain a signed

release from the candidate indicating that it is understood that the employer may

seek confidential information from former employers or other sources.

Work reference checks Most organizations include a statement on the application form asking the

candidate's permission to seek information from former employers. Because

firms have been sued by people who discovered that they were given poor

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recommendations, many organizations refuse to supply information without a

signed statement from the former employee. Even then, many are reluctant to

put an evaluation in writing or release much information over the phone. Most

HR departments will only verify that the individual was employed during a

specific time period at a particular salary or hourly rate.

To get in-depth information about the quality or quantity of the candidate's

work, try to contact former supervisors, clients, and colleagues in the industry,

but always with the permission of the candidate. The most informative

references will be those given by former or current supervisors, who are likely

to know the candidate's work and who have observed the candidate performing

a job that is similar to the one the candidate has applied for.

Verification of academic credentials Some employers request copies of grade transcripts or verification that the

applicant attended the educational institutions listed on the resume or

application form.

Credit history checks Concerned about the integrity of potential employees, some employers have

requested credit checks. Such inquiries, unless a business necessity, may be

discriminatory toward women and minorities. Generally, credit checks should

be conducted only on candidates for positions of financial responsibility or for

positions that involve handling significant amounts of currency or other

valuables.

Motor vehicle record checks Motor vehicle records are maintained by departments of motor vehicles in all

50 states. The departments record the driving activities of the driver, such as

moving violations, motor vehicle accidents, driving with a revoked/

suspended license, and driving while impaired. Depending on the state,

violations are provided for the last three to five years. Motor vehicle record

checks should be conducted only on candidates for positions requiring the

use of company vehicles or personal vehicles during the course of

performing the job.

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Criminal background checks Employers conduct criminal background checks to increase the quality of

applicant hiring, reduce the possibility of theft and embezzlement, and limit

exposure for negligent hiring. Criminal background checks can also identify

applicants with drug or alcohol problems and may help reduce workplace

violence. At the very least, criminal background checks may be used to verify

information provided in the resume or on the application form.

Reliability and Validity of Selection Tests/Tools/Methods Hiring the wrong person for the job is a costly mistake. Selection errors can

negatively affect the organization's human capital management plan as well

as corporate morale, management time, training budgets, and productivity

and profitability. Plus, there is the risk of litigation if selection decisions

prove to be discriminatory or violate state or federal regulations. Therefore, it

is imperative that HR professionals carefully evaluate the organization's

selection process to make certain that it is reliable, valid, equitable, and cost-

effective.

Establishing reliability As mentioned in Section 1-5 of Module 1: Strategic Business Management,

reliability is the ability of an instrument to measure consistently.

Example: If an interviewer judges the capability of an applicant or group of applicants differently from day to day, the result is considered unreliable. If an applicant takes a motor skills test twice, the scores should be similar (allowing for the effect of practice). If the scores differ significantly, the test may not be reliable.

Perfect reliability is rarely achieved. A variety of errors can occur that may

create inconsistent results, including:

• Failure to measure some portion or aspect of an important attribute.

• Irrelevant questions in an interview or on a test.

• Different time limits for people in an interview or on a test.

• Rater bias in evaluating candidates.

Establishing validity If a charge of discrimination is brought against an employer and adverse impact is

proven, the employer must demonstrate that the selection procedure is valid. As

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mentioned in Section 1-5 of Module 1: Strategic Business Management, validity

is the ability of an instrument to measure what it is intended to measure.

Validation answers two questions:

• What does the instrument measure?

• How well does the instrument measure it?

Validity measures the degree to which inferences made from an interview or a test

are correct and accurate. In other words, did the interview measure only job-

related issues that predict performance on the job?

Example: A typing performance test might be considered a valid prerequisite for applicants for the administrative processing center but not for receptionists who do no typing.

The Uniform Guidelines on Employee Selection Procedures recognize three

types of validity, as described below. Investigating these types of validity is

referred to as validation.

• Content validity

Content validity is the degree to which an interview, test, or other selection

device measures the knowledge, skills, abilities, or other qualifications that

are actually part of the job. A test is content-valid if it reflects an actual

sample of the work to be done.

Example: A typing test is content-valid for a secretarial position.

Content validity is better ensured when a thorough job analysis is done to

define what the job entails. This is the least sophisticated type of validity to

assess. Its use is primarily to evaluate job knowledge and skill tests. It is

generally not appropriate for evaluating tests that measure ability to learn

new skills.

• Construct validity

Construct validity is the extent to which a selection device measures the

theoretical construct or trait. Typical constructs are intelligence or

mechanical comprehension; personality traits include characteristics like

anxiety. Organizations measuring construct validity are required to



demonstrate that the trait is related to job performance and that the test

accurately measures the trait.

Example: A test for teamwork would be construct-valid if it measures the ability to interact with others and if that trait is important for job performance.

Proving construct validity requires complex statistical analyses that are best

left to experts in testing and measurement.

• Criterion-related validity

Criterion-related validity refers to the link between a selection device and

job performance.

Example: If people who score higher on a test perform better on the job than those with lower test scores, the test has criterion validity.

This requires a careful analysis of the job itself. For example, assume that the

ad for a receptionist position stated that a college degree was required. If

challenged, the employer would have to prove that receptionists with college

degrees do indeed perform job-related tasks better than those without degrees.

In determining criterion-related validity of tests, the test is the predictor and

the knowledge, skills, and abilities are the criterion variables. Examples of

both appear in Figure 44.

Predictors Criterion Variable

• Completed application form • Performance evaluations • Resume data • Productivity • Interview answers • Absenteeism • Test scores

Figure 44. Predictors and Criterion Variables

The more overlap there is between the predictors and the variables, the better

the predictor. Recall the discussion of correlation from Section 1-5 of Module 1:

Strategic Business Management. Complete correlation between two variables is

expressed by +1 o r - 1 . Positive correlation occurs when one variable increases

as the other increases; negative correlation occurs when one decreases as the

other increases. Absence of correlation is represented by 0.

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There are two approaches to establishing criterion-related validity: concurrent

validity and predictive validity.

• Concurrent validity

Concurrent means at the same time. Therefore, concurrent validity is

determined by relating the test scores of a group of test takers who take a

test (Test A) to some other criterion measure (Test B) that is administered at

the same time.

Example: A test may be given to current employees (Test A) and then, at the same time, their scores are correlated to their performance ratings (Test B). If those who score well on the test also perform well on the job, there is a positive correlation.

Figure 45 demonstrates this relationship.

• Predictive validity

Predictive validity is the degree to which the predictions made by a test are

confirmed by the later behavior of the test takers. The usual method for

obtaining predictive validity is to give the test, wait until the behavior that

the test attempts to predict has or has not occurred, and then correlate the

occurrence of the behavior with the test takers' test scores. The procedure

requires a fairly large sample of people and time to collect and analyze the

data.

Example: A test may be given to new hires and then, somet ime later, the test results are correlated with the job performance of those tested.

Figure 45. Concurrent Validity

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Figure 46 illustrates the predictive validation process.

Figure 46. Predictive Validity

All three types of test validation—content, construct, and criterion-related—

involve complex research procedures that may require the services of a

consulting psychologist or professionals who specialize in test design and

evaluation. However, the validation process may actually reduce the costs

associated with recruiting and selecting employees. For example, the cost of

processing applications may decrease based on identification of a knockout

process.

Establishing equity The equity of selection processes and decisions can be measured in a variety of

ways. Some of the key considerations are:

• Does the selection process have adverse impact on protected classes?

• Is the organization meeting its affirmative action goals?

• Has the organization been successful in identifying and selecting a diverse,

multifaceted workforce?

• Do job applicants view the process and decisions as fair?

Establishing cost-effectiveness It is not enough to have a process that is reliable, valid, and equitable. For an

organization to be profitable, it must be able to attract and retain good

employees. In the final analysis, a selection program must be measured by the



extent to which it fulfills the long-term needs of the organization. Therefore, the

true measurement of selection lies in such factors as:

• Percentage successfully completing employee training programs.

• Performance on the job.

• Reduction of employee turnover and retention of employees.

Realistic Job Previews

A realistic j ob preview (RJP) is any part of the selection process that

provides an applicant with honest and complete information about a job and

the work environment - - a clear picture of what a job will be like if they are

hired. The purpose of an RJP is twofold:

• A candidate must be given as much information as possible so that he or

, she can make an informed decision about their suitability for the job.

• The organization must objectively portray the job—both favorable and

unfavorable aspects.

Types of realistic job previews Many things may be included in an RJP. The nature of the job and the

organizational culture are two important factors that shape the information that

is shared and how it is presented. For example, a high-tech company might have

a sophisticated simulation available on their Web site for Internet job seekers,

while a walk-in for a manufacturing job might be given a tour of the shop floor.

Figure 47 lists the general types of information organizations share in an RJP.

Types of Realistic Job Preview Information

Description of a typical day on the job The organization's vision, mission, and values

A succinct description of the organization's products and/or services Aspects of the job that have been difficult for other employees Aspects of the job that have been rewarding for other employees

Opportunities for professional development and advancement Compensation and benefit realities Unique aspects of the job (e.g., dealing with customer complaints, overtime) Pending organizational layoffs, reorganizations, mergers, acquisitions, etc. Steps in the selection process

Figure 47. Realistic Job Preview Information



Format of RJPs Organizations can do realistic job previewing in a variety of ways. A few

examples include the following.

• Tours of the workplace

A walk-through of the workplace provides a candidate with an accurate

picture of the everyday work environment. Candidates can determine their

comfort level with the physical format (e.g., cubicles or traditional offices,

break areas, cafeterias) as well as noise levels.

• "Multiple j olts of reality"

When a firm offers a job seeker "multiple jolts of reality," several activities

are combined, such as a collateral print piece describing life on the job,

private interviews with job incumbents, and an audiotape of typical

conversations with customers, including vignettes of rude customers.

• Job simulations

An important aspect of the job is brought to life through a simulation. A

candidate is allowed to experience the event and has the opportunity to quit

before they accept the position. For example, an applicant for a clean-room

manufacturing position might have the opportunity to wear the clean-room

attire that is required several hours a week.

• Video or CD-ROM presentations

In this type of RJP, an applicant is allowed to view a video or CD-ROM

(again, prior to coming to work at the organization). The media may portray

the history of the company, the organizational culture, a discussion of

benefits, and the path of a typical day (including a view of work facilities,

break areas, cafeterias, etc.).

• Automated job telephone information line

An interactive 1-888 number sells the company and tells about the job.

Unique job requirements that have historically led to job dissatisfaction

and/or turnover may also be mentioned (e.g., relocation required, the fact

that current hiring is only for night shift positions).



Benefits of RJPs

A simple adage applies to realistic job previewing: It pays to tell the truth. An

effective RJP:

• Helps an organization to dispel unrealistic expectations and accurately

represent the organizational realities.

• Promotes a healthy exchange between the applicant and the organization.

• Encourages self-selection.

• Helps to increase job satisfaction.

• Helps prevent disappointments.

• Reduces post-entry stress.

• Reduces employee turnover.

Step 4: Contingent Job Offer Employers may require a number of tests or other requirements before or after a

conditional offer of employment has been made. They include:

• Tests to determine current illegal use of drugs.

• Physical agility tests, which measure an employee's ability to perform actual

or simulated job tasks.

• Physical fitness tasks such as running and lifting, as long as they do not

include exams that could be considered medical, such as measuring blood

pressure or heart rate.

• Tests that evaluate an employee's ability to read labels or distinguish objects

as part of a demonstration that the applicant has the ability to perform job

functions.

• Psychological tests that measure personality traits such as honesty,

preferences, and habits.

A conditional offer of employment may also depend on verification of

Immigration Reform and Control Act (IRCA) documents.

In Leonel v. American Airlines, the Court of Appeals for the Ninth Circuit

focused on the ADA's conditional offer requirement. In this case, the offer of

employment was contingent not only on the medical examination but also on a

satisfactory background check—employment history verification and possible

criminal history records checks. The Court of Appeals held that to issue a "real"

offer under the ADA, an employer must have completed all nonmedical



components of the application process or be able to demonstrate that it could not

reasonably have done so before issuing the offer. Although the Court 's decision

is binding only in the Ninth Circuit, the analysis could be adopted by other

courts.

Qualified Medical Examinations

Under the ADA, employers may require medical examinations only if the :.

exams arc job-related and consistent with business necessity and only after an

offer of employment has been made to the applicant. Results of the exam can

be used to determine whether the candidate can perform essential job functions

and whether reasonable accommodation can be made for a particular

disability. The exam may be completed in the company's medical office or by

a physician specified by the company. * * -

If an employee is already on the job, the employer's right to conduct a medical

examination is usually limited to so-called "fitness for duty" situations. Where

an employee has exhibited objective indications that he or she is physically or

mentally unfit to perform the essential functions of the job, an employer may

request that the employee's fitness for the job be evaluated by a medical

examiner. Although the examiner is entitled to take a full history of the

employee and conduct any tests necessary to evaluate the employee's fitness,

only the examiner's conclusions about job fitness may go to the employer.

Many states also impose strict limits on the information a doctor may disclose to

an employer or an insurance company.

Some states have interpreted their nondiscrimination laws with regard to

disabilities to cover conditions that would not be protected by federal law and/or

to impose restrictions that go beyond federal law. Again, employers need to

consider not only federal law but also state law.

Additional information on the ADA and hiring disabled workers appears in

Section 2-1 of this module, "Key Legislation Affecting Employee Rights."

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Information on disability-related inquiries and medical examinations may be

found at www.eeoc.gov/policy/docs/guidance-inquiries.html.

Employment Offer An employment offer should immediately follow the final decision to hire a

candidate. An employment offer makes the hiring decision official and is

formally communicated through an offer letter. Organizations need to handle

this phase of the hiring process just as carefully as the events leading up to it.

Mishandling this part of the process can result in losing the candidate to another

organization or can give the employment relationship a bumpy start even if the

candidate comes on board.

Employment offers must be worded carefully. They should never include

language that could imply an employment contract. They should clearly state

that employment is at will (see the discussion of employment-at-will that

follows) and confirm that the employee is not relying on any information or

promises that are not reflected in the letter accepting employment.

Figure 48 provides a simple list of do's and don'ts for offer letters.

Offer Letter Do's

• Do use a standard letter or a • customized version that has been cleared with legal counsel. .

• Do clearly state the terms of the offer.

• Do set a reasonable acceptance deadline.

• Do clarify any contingencies (e.g., * reference checking, physical examination, drug testing). •

• Do clarify acceptance details (e.g., requiring a signature returned on a duplicate copy of the letter).

• Do use the transition period to help the new employee feel welcome (e.g., mail informational brochures).

Figure 48. Guidelines for Employment Offers

Offer Letter Don'ts

Don't back down on any promises made.

Don't set an excessively short acceptance time for situations involving relocation or with higher-level positions.

Don't lose touch with a candidate once the offer is accepted.

Don't quote salary terms in an annual format; use hourly or monthly figures. (In the event of termination, an annual figure could become binding.)


http://www.eeoc.gov/policy/docs/guidance-inquiries.html


Employment Contracts An employment contract (also referred to as an employment agreement) is an

agreement between an employer and an employee that explains the employment

relationship.

From a legal perspective, a contract results when an individual, group, or some

other entity promises or offers something that is accepted by another party. An

important point is that acceptance may be by words or actions. Case law is full

of decisions attempting to distinguish between "a promise" and "an offer." For

the most part, contracts are usually classified as "express" or "implied" and

"oral" or "written." An express contract is based upon oral or written

statements; an implied contract results from a party's actions or conduct.

Written contracts

To a certain extent, everyone who takes a job has an employment contract or

agreement. For example, someone accepting a job for $10 an hour agrees to a

$10 per hour contract with the employer. Under that contract, the employer

must pay the person $10 for every hour worked until the contract is changed.

However, virtually every state recognizes some form of employment-at-will,

which means that a company may terminate an employee with or without cause

at any time, with or without notice. Conversely, employees may leave with or

without notice. Most states operate under the presumption that a company is

operating under the employment-at-will doctrine unless a written employment

contract for a specified term is in place.

Employment-at-will is discussed in more detail in Section 5-1 of Module 5:

Employee and Labor Relations.

A written contract helps to clarify employment terms that can otherwise be

subject to misunderstanding and misinterpretation. While oral employment

agreements are generally just as enforceable as written ones, some terms can

become hard to prove if one side disagrees with specific terms or outright denies

having agreed to them.



Ideally, when contracts are put in writing, they should be designed to meet the

needs of both parties. A contract cannot include waivers of employee rights

under federal or state laws. Even with written contracts, laws prohibiting

discrimination and gender harassment, protecting the disabled, regulating

wages, imposing safety standards, providing medical and family leave time,

covering benefits for employees injured on the job, and dealing with

unemployment compensation apply.

Employment contract terms

There are many items to consider in drafting a written employment contract.

Naturally, specific contract terms will vary based on the organization, the job,

and applicable state laws. The following list briefly explains items typically

covered in an employment contract.

• Terms and conditions of employment. The opening section of an

employment contract specifies the parties involved. This section often

includes the term or duration for the contract and provisions for extensions

or renewal. Contracts may be short-term (e.g., one year or less), or they may

be for a continuing relationship with provisions for automatic renewal.

• General duties and job expectations of the employee. This section of the

agreement sets forth the job duties expected of the employee. It may include

extensive detail, or a job description may be attached as an addendum.

• Confidentiality and nondisclosure terms. The contract language in this

section sets forth the understanding and agreement between the employer

and the employee about information that is considered confidential or secret

and may not be disclosed to competitors, future employers, and others.

• Invention or nonpiracy covenants. These cover who owns the right to a

product (company or employee) if the relationship is terminated. Under the

legal doctrine of "work made for hire," the products employees create

directly related to their positions are generally considered the property of the

company they work for. But this question of ownership can become quite

complex. More information about work made for hire is covered in the

discussion of copyright in Section 3-1 of Module 3: Human Resource

Development.

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• Compensation and benefits. These provisions may be as simple as stating

the wage rate and that the employee is eligible for all benefits provided to

employees in similar situations. Or the section can include specific details

about base pay and incentives and an itemization of benefits.

• Noncompete covenants. This section is included if an employer chooses to

restrict former employees' activities regarding whom they work for after the

employment relationship is terminated. Generally, a noncompete agreement

limits an employee's ability to work in the same or a similar line of work

within a geographic area for a set period of time. Noncompete terms can

become controversial. In cases of litigation, the courts attempt to balance the

rights of individuals to seek work against the employer's need to protect its

business.

• Change of control. Terms describing what happens in the event of a merger

or acquisition should be specified.

• Terms for resignation/termination. Similar to the provision setting forth

the term of the agreement, termination provisions should be clearly spelled

out. In some contracts, provisions for terminating the agreement may be

included in the discussion of the terms and conditions of employment.

• Relocation. The primary goal of corporate relocation is to ensure that

employees being transferred receive the best service at the most reasonable

cost to the company. There are many details to handle in relocation. Some of

the potential considerations are listed in Figure 49.

Relocation Considerations

Finding a home • Car rental and lodging

Temporary living • Per diems or caps on expenses

Final move coverage (e.g., • Inclusion of child-care costs

agreement terms for what is and . inclusion of pet-boarding costs what is not moved at the company's expense) Fly and drive requirements

Class of airfare for any air travel involved

Tax issues

Figure 49. Relocation Considerations



• S e v e r a n c e prov i s ions . A n y severance provis ions fo r invo lun ta ry

res igna t ion , layoffs , etc. (s i tuat ions o ther than gross m i s c o n d u c t ) shou ld

be out l ined.

• A p p r o p r i a t e s ignatures and date . It is cri t ical that the e m p l o y e r and the

e m p l o y e e s ign the d o c u m e n t be fo re the emp loyee starts w o r k .

T y p e s of e m p l o y m e n t cont rac ts

T h e r e are m a n y reasons w h y e m p l o y e r s use e m p l o y m e n t cont rac t s . Wr i t t en

e m p l o y m e n t cont rac ts are genera l ly used w h e n the e m p l o y e r - e m p l o y e e

re l a t ionsh ip is s o m e t h i n g o ther than " t rad i t iona l , " such as the h i r ing of a

consu l t an t , an i ndependen t cont rac tor , a t empora ry w o r k e r , etc.

In F i g u r e 50, s o m e of the o ther types of e m p l o y e e s typica l ly c o v e r e d by

wr i t t en cont rac t s are s h o w n . T h e t e rms usual ly cove red in the con t rac t are

a l so l is ted.

Employee Type Contract Terms

Executives Term of employment; compensation and benefits; perks and incentives; duties; requirements for community involvement; limitations on conflicts of interest; noncompete agreements

Sales and marketing representatives

Commission pay structure; sales territory; customer confidentiality provisions; attempts to limit post-employment competit ion to the greatest extent allowed by law

Professionals (e.g., accountants, doctors, attorneys, advertising representatives)

Restrictions to perform services exclusively for the employer; requirements related to client development and community involvement; attempts to limit post-employment competit ion to the greatest extent allowed by law

Employees with special skills (e.g., high tech or research)

Protections for trade secrets and confidential information; rights to patents and copyrights derived during employment; incentive pay for research and inventions; attempts to limit post-employment competition to the greatest extent allowed by law

Figure 50. Types of Employee Contracts (continued on next page)



Employee Type Contract TermS

Academics Tenure guidelines; publishing requirements; compensation, including any government research grants and endowed programs

Telecommuters Work hours; accessibility to customers, coworkers, and supervisors; contact information; equipment ownership and maintenance; office expenses; maintaining a safe work environment; maintaining confidentiality and security of company information

Source: Louis K. Obdyke. "Written Employment Contracts—When? Why? How?" SHRM White Paper. Alexandria, Virginia: Society for Human Resource Management, 1999.

Figure 51. Types of Employee Contracts (concluded)

Employment contracts do not necessarily protect an employee from being fired or

disciplined. They may, however, limit what action the employer can take and when.

A written contract can also stipulate how disputes are to be resolved. Some contracts

may require both parties to submit to arbitration rather than litigation in the courts.

When a collective bargaining agreement is in place, employers cannot enter into

a separate agreement with employees covered by the terms of the bargaining

agreement.

Legal counsel with employment law expertise should be involved in the

development of any employment contract. Further, employment contracts

should be regularly reviewed and updated to reflect any changes in an

employee's position.

Successful human capital management requires an efficient selection process. It

also requires effective retention strategies and practices. Organizations spend

time and effort identifying and recruiting high-caliber applicants. But without

the ability to develop and inspire employees, an organization runs the risk of

losing talented individuals.

Retention

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Retention is the ability to keep talented employees in the organization.

Specific retention strategies vary across organizations, but the following

principles are typically addressed.

• Clear and consistent job expectations. Employees need to know exactly

what is expected of them. Unclear or changing job expectations can lead to

stress and confusion. Employees may feel inadequate or unsuccessful.

• Clear and fair supervision. Employees often leave an organization because

of dissatisfaction with the management and supervision they received. Clear

and direct communication about performance expectations, the potential for

rewards, and performance feedback are all critical in retaining employees.

• Adequate training. Employees need to have the training necessary to do

their jobs well. New hires need to hit the ground running.

• Adequate resources. In addition to training, employees need the

resources—both time and tools—to perform their jobs.

• Growth and promotional opportunities. Career-oriented individuals seek

opportunities to grow professionally. Without the chance to learn and try

new things, talented employees tend to feel stagnant or stuck in their current

position. Ultimately, high-performing employees want to leverage their job

experience through career progression.

• Recognition. Whether it 's a monetary reward, an informal thank-you for a

job well done, formal recognition for accomplishments and achievement, or

a celebration for a success, employees need to feel appreciated.

• Respect. Employees should feel comfortable speaking openly and offering

their ideas without fear of ridicule or retaliation.

• Perceived equity. Employees should feel that their contributions and talents

are being rewarded fairly. Any sense of internal inequity in compensation,

benefits, and other treatment can create morale and motivation problems.

Total rewards must be externally competitive as well.

Employee turnover is costly. In addition to the monetary investment it takes to

fill an open position, there are several other costs. Lost training time, lost

knowledge and skills, and the potential for poor morale and productivity of

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© 2011 SHRM


other employees are all considerations. Without effective employee retention,

the long-term health and success of an organization can suffer.

Section 3-6 in Module 3: Human Resource Development provides additional

content related to employee retention. Module 4: Total Rewards discusses the

impact of total rewards on recruitment and retention.

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Progress Check


1. Which of the following is a good reason applicant notification should take place in a

timely fashion?

( ) a. Organizations are legally required to notify applicants of their status in a

timely manner.

( ) b. The recruitment process may have an impact on applicant reactions and

subsequent attitudes toward the organization.

( ) c. It lets the applicant know the interview went well.

( ) d. It keeps the recruitment process straight.

2. Which of the following statements characterizes a nondirective interview?

( ) a. The interviewer asks all applicants the same questions.

( ) b. The interviewer deliberately creates a high level of anxiety.

( ) c. Each applicant is asked different questions about the same skill and ability

areas.

( ) d. The interviewer's next question is determined by the applicant's response to an

open question.

3. A store is planning for expansion to a new geographic region, and applications for

management-level transfers are being accepted from internal applicants. If internal

recruiting efforts do not yield enough qualified candidates, a newspaper ad in the new

geographic region will be run. In this situation, a structured interview process is better

than an unstructured process because it

( ) a. is possible to gather dissimilar information and compare qualifications of all

candidates while reducing compliance concerns.

( ) b. fulfills EEO requirements about protected class biases and allows the

interviewer to legally document subjective impressions of the candidates'

nonverbal behavior.

( ) c. is possible to gather similar information from all candidates and ensure that the

interview process is job-related and measures what it purports to measure.

( ) d. enables interviewers to measure the sample of behavior with a high degree of

consistency by scoring/tallying numerical values assigned to given behaviors.



4. Which of the following selection practices is illegal under federal law?

( ) a. Obtaining information from references without an applicant's permission

( ) b. Requiring a job-related test that has adverse impact on minority groups

( ) c. Determining if an applicant has ever filed a workers'compensation claim

( ) d. Requiring applicants to submit to a preemployment drug test

5. Which interview question is legal under federal law?

( ) a. Is English your native language?

( ) b. What religious holidays do you observe?

( ) c. Kalinowski? Is that Polish?

( ) d. Do you have the legal right to work in the U.S.?

6. Which interview question has the potential to be discriminatory under federal law?

( ) a. I notice you use a white cane. Are you legally blind?

( ) b. Do you have any relatives who work for this company?

( ) c. The job requires you to lift a 20-pound weight and place it on an overhead shelf.

Can you do that several times an hour, all day long?

( ) d. Are you over age 18?

7. Which of the following preemployment tests has the best potential for measuring an

applicant's integrity?

( ) a. Ability test

( ) b. Personality test

( ) c. Honesty test

( ) d. Polygraph test

8. Which of the following selection practices is legal under federal law?

( ) a. Taking age into consideration if an applicant volunteers the information

( ) b. Requesting applicants to take a polygraph test

( ) c. Rejecting an applicant on the basis of their credit record without telling them the

name of the party that prepared the report

( ) d. Requesting proof of an applicant's education

9. Which of the following statements about a reliable employment test is true?

( ) a. It determines how the applicant handled previous work situations.

( ) b. It avoids linking the responses of successive questions.

( ) c. It must be job-related and measure what it purports to measure.

( ) d. It measures the sample of behavior with a high degree of consistency.



10. Validation studies, such as predictive and concurrent validation, use which of the following?

( ) a. Correlations

( ) b. Multiple means of assessment

( ) c. Multiple assessors

( ) d. Multiple regression

Interviews with future coworkers is an example of a

( ) a. stress interview technique.

( ) b. realistic job preview.

( ) c. specialized preemployment test.

( ) d. method to establish equity.

12. Which

( )

( )

( )

( )

13. An

( ( ( (

I

14. A contract writer produces a brochure to promote a product for a company. Which !

employment contract provision deals with whether or not the writer can use the brochure I

design for other purposes outside the company? j i

( ) a. Employment guarantees

( ) b. Work-made-for-hire covenant

( ) c. Implied terms of work j ( ) d. Good-faith promises !

of following statements about medical examinations is TRUE?

a. Temporary workers can be required to submit to a medical exam before

assignment.

b. Preemployment health checklists can be requested before an employment offer is

made.

c. Exams must be job-related and may be required only after an employment offer is

made.

d. The exam must be completed by the company's medical staff or a referral.

offer letter should be sent to a candidate immediately after

) a. the hiring decision is made.

) b. all contingencies are addressed.

) c. both parties review the employment contract.

) d. both parties verbally agree to any relocation agreement.




1. b (p. 2-190)

2. d (p. 2-191)

3. c (p. 2-191)

4. c (p. 2-196)

5. d (p. 2-196)

6. a (p. 2-196)

7. c (p. 2-201)

8. d (p. 2-204)

9. d (p. 2-205)

10. a (p. 2-207)

11. b (p. 2-211)

12. c (p. 2-213)

13. a (p. 2-214)

14. b (p. 2-216)

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>rkforce Planning

d Employment

0

Organizational Exit

i f 'j


• Develop and implement the organizational exit process for both voluntary and involuntary terminations, including planning for reductions in force (RIF).


• Voluntary and involuntary terminations, downsizing, restructuring, and outplacement strategies and practices.


Downsizing Recruiting and hiring the best employees is a large part of workforce planning

and employment. However, how your organization deals with employees who

are leaving the organization—either voluntarily or through planned

reductions—is also a critical part of workforce planning and employment.

Organizational exit is the term used to describe the process of managing the

way people leave an organization. Managing organizational exit is important

because it:

• Allows management to act proactively, influencing who leaves and when.

• Eases the negative or disruptive effects of any reductions in force due to

restructuring or business contraction.

• Influences voluntary turnover.

Over the past decade, industry has been affected by technology, mergers,

acquisitions, and deregulation. This can result in changes such as:

• Layoffs/reductions in force.

• Terminations (involuntary and voluntary).

Layoffs/Reductions in Force (RIFs) Almost all employers experience the need to reduce or adjust their workforce

size at one time or another. The most common reasons include the following:

• Mergers and acquisitions

• Downturn in business

• Reorganization or restructuring

• Financial difficulties

• 1 Plant obsolescence or relocation

• Technological developments

When determining which employees should be laid off, employers usually

consider skills, work record, and seniority. A straight seniority approach is most

objective but may not meet the employer's long-term needs if senior employees

do not have the skills the organization needs or if affirmative action or diversity

goals are considered. In white-collar workforce reductions, less consideration is

customarily given to seniority and more is given to the performance and skills

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of the individual as matched against the requirements of the post-layoff

organization.

Possible alternatives to labor reductions include asking employees to sustain

pay cuts, offering voluntary termination and/or retirement with additional

benefits, or asking employees to accept a reduced work schedule.

Any analysis must consider disparate impact, EEO, and other legal implications.

In order to avoid problems, the rationale for a layoff needs to be:

• Based on business necessity.

• Clear.

• Convincing.

• Explained with a measure of compassion.

Management should document the criteria used to make all layoff decisions.

If a layoff is seen as a chance to remove poor employees, then it is necessary to

decide which employees are the least productive. For example, an employer

could use performance appraisal data to assign a numerical ranking to each

employee based on quantifiable or objective criteria such as qualifications,

ability, or productivity. Seniority can serve as a tiebreaker.

A layoff implies a chance that an employee might be called back to work.

Therefore, laid-off employees should be told to consider themselves terminated

if they are not recalled within a certain length of time.

When there is no expectation of recalling the employee, the separation should

be considered a termination. If the employee wants to be rehired, the employee

must go through the application process as would any applicant. The employer

must be careful not to imply that the employee will be rehired.

Severance packages

Severance packages are generally not required by law, but many companies

choose to offer them in layoffs. Some states have laws regarding severance.



A well-defined severance package details which employees qualify, how much

they qualify for, and under what circumstances they receive severance. This

varies a great deal from company to company:

• A majority of companies use length of time with the company, salary, or

grade level to determine the severance package.

• Some companies provide packages for any kind of involuntary termination;

others assist only those who were separated due to downsizing.

• Some companies do not provide severance for termination because of

misconduct.

Severance packages need to address employee needs for:

• Outplacement.

• Health benefits—continuation guaranteed by the Consolidated Omnibus

Budget Reconciliation Act (COBRA), etc.

• Other benefits—rights provided by the Older Worker's Benefit Protection

Act (OWBPA), ERISA, etc.

• Adequate severance pay.

A layoff may reduce overhead, but it also affects other costs such as

unemployment compensation. This usually results in an increase in the

employer's unemployment tax contributions.

Section 4-5 of Module 4: Total Rewards covers the specific terms of

COBRA, OWBPA, and other regulatory provisions for severance

packages.

Employees In a downsized environment HR professionals must not only help separated employees in a downsizing;

they must also help the retained employees confront challenges such as:

• Diminished job security.

• Increased workload.

• Different work assignments.

• Changed organizational priorities.

• The departure of leaders and managers who once defined the

organization's character.



• The departure of long-term employees who were knowledgeable about

operations.

• The loss of colleagues (possibly friends).

The situation for those employees left behind can become quite stressful. It is

human nature that the retained employees will wonder what other changes are

looming, if they are safe, will they have to prove themselves again, and should

they start looking for a new job. Some individuals may even resort to defensive

behavior and adopt the "them vs. us" posture in coping with the change.

It is challenging to convert such feelings of distress and behavioral resistance

back to commitment and productivity. But there are steps HR can take to help

employees through the transition. Employees left behind need reassurance that

they have a future in staying on with the organization. Security, loyalty, and

productivity are best restored when employees know that corrective actions are

being taken. To that end, the following measures can help.

• Communication. The rationale for the new goals and structures must be

clearly communicated. The communications should be as forthcoming as

possible. Some rumors may need to be addressed.

• Behavior. Good and bad behaviors during downsizing become infectious.

Employees should be given specific examples of actions that are appreciated

as well as what will not be tolerated. Vulnerable employees may need

additional support; problem employees may need structural limits.

• Timing. The transition period must be speedy. The longer things get

dragged out, the more likely employees are to view the situation as

leadership failure.

• Leadership. Retained employees will quickly dismiss hype. Organizational

leadership and managers should look for ways to lead by example and help

employees see how new challenges can be met.

• Job definitions and responsibilities. Lack of clarity about job definitions

and responsibilities contribute to insecurity; they can make employees feel

threatened or superfluous. Sensitivity should be exercised in educating

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employees about any changes and making them feel they are still valuable

contributors.

• Rewards. Rewards must be realigned to support organizational goals.

HR can play an important role in implementing these solutions. This often

requires overcoming some personal fears of getting involved and the distaste for

potentially messy interactions. But the dividends can be helping retained

workers from getting derailed.

Terminations

Terminations generally fall into three categories: wrongful terminations,

involuntary terminations, and voluntary terminations.

Wrongful terminations Certain types of termination may be considered wrongful by the courts. These

include constructive and retaliatory discharge and involuntary or coerced

retirement.

Constructive discharge. As described earlier in Section 2-4 in this module,

constructive discharge occurs when an employer makes working conditions

so intolerable that the employee has no choice but to resign (e.g., the

employer ignores the employee's complaints or badgers the employee into

quitting). On occasion, an employer may entice the employee into quitting by

implying that they will call the matter a voluntary resignation (rather than a

termination).

• Some courts hold that the standard for determining whether an employee has

been constructively discharged is whether a reasonable person in the

employee's place would have felt forced to resign. In other courts, a specific

intent to force the person to leave must be proven. Constructive discharge, by

itself, does not create liability for an employer. However, a constructive

discharge will be deemed a termination, and, if the termination was unlawful,

the employer would be liable.

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© 2011 SHRM


Retaliatory discharge. Retaliatory discharge is the result of an employer

punishing an employee for engaging in activities protected by the law. Such

activities may include:

• Filing a discrimination charge.

• Opposing unlawful employer practices (e.g., whistleblowing).

• Testifying, assisting, or participating in an investigation, proceeding, or

litigation against the employer under any of the labor relations,

occupational safety and health, workers' compensation, or unemployment

compensation acts.

• Participating in a protected leave of absence (e.g., military leave, jury

duty, FMLA).

For a charge of retaliatory discharge to be valid, employees must prove that

they were engaged in a protected activity' and/or were subsequently discharged

and that a causal connection exists between their activity and the discharge. In

reviewing claims for discharges, courts look closely at the employer's reasons

for discharge and attempt to determine whether these reasons have

traditionally been causes for termination.

Coercion. If employees have involuntarily taken retirement because they were

offered a choice of early retirement, demotion, or dismissal, they may sue the

employer, claiming coercion.' For a chafge to be valid, employees have to

prove that they were coerced into early retirement because of unlawful age . ,

considerations. - , _

Employers may be protected from such charges if they follow the guidelines in

Figure 51 and can prove that the retirement was voluntary. In order to prove that

the retirement was voluntary, employers must show that they:

• Provided accurate information about the plan and benefits.

• Provided honest information to the employee about future job prospects.

• Allowed sufficient time for the employee to make a considered decision.

• Assured the employee that the offer could be freely declined.

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Involuntary terminations

For varying reasons, employers may decide to discharge particular employees

for cause through an involuntary termination. These reasons may include poor

performance, inability to manage subordinates, inability to work with

management, and violations of employer policy.

If the proper disciplinary procedure is followed and the termination is legally

justified, the employer's exposure to liability will be substantially reduced.

Note that when employment is at will, there does not need to be cause to

terminate an employee. The lack of a good reason for discharge may, however,

expose the employer to potential liability even in the employment-at-will

context.

Employment-at-will is discussed further in Section 5-1 of Module 5: Employee

and Labor Relations.

If terminations cannot be avoided, the employer should ensure that the

terminations do not have an adverse impact on older workers or any other

protected class.

The employer should also consider providing a complaint mechanism for

employees who want to question the decision within the organization. The

employer should be able to articulate the legitimate, nondiscriminatory business

reasons behind each termination decision. If the employee thinks that the

discharge is wrongful, he or she may be tempted to sue the organization.

How to terminate an employee. Involuntary employee terminations are

initiated by the employer. The human resource department must ensure that

these acts are done in a lawful manner, which includes the following:

• Reviewing and documenting the situation to see that the company abides

by federal, state, and local legislation and regulations

• As appropriate, providing an opportunity for the employee to continue in

the company-provided health insurance plan at his or her cost for up to 18

months, according to the Consolidated Omnibus Budget Reconciliation

Act

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• A s appropr ia te , p rov id ing the oppor tun i ty to pa r t i c ipa te in o ther bene f i t

con t inua t ion p rog rams

• A d h e r i n g to state w a g e p a y m e n t l aws

• P rov id ing e m p l o y e e r e f e r ences

In addi t ion , there are s o m e c o m m o n - s e n s e ru les to fo l l ow . F i g u r e 51 s h o w s the

d o ' s and d o n ' t s fo r conduc t ing i nvo lun t a ry t e rmina t ions .

Termination Do's

• Do give as much warning as possible (or as mandated by law) for mass layoffs.

• Do sit down one on one with the individual in a private office. (Consider having a witness in most situations.)

• Do complete a termination as quickly as possible.

• Do provide a written explanation of severance benefits.

• Do be sure that the employee hears about the termination from a manager, not a colleague.

• Do express appreciation for employee contributions, if appropriate.

• Do control your emotions.

• Do inform other employees, customers, and suppliers of the decision by giving a simple and nonblaming statement.

Termination Don'ts

• Don't leave room for confusion; tell individuals in the first sentence that they are terminated. Verify that they understand.

Don't allow time for debate.

Don't make personal comments; keep the conversation professional.

Don't rush an employee off site unless security is really an issue.

Don't fire people on significant dates (like the 25th anniversary of their employment).

Don't fire employees when they are on vacation or have just returned.

Don't make discriminatory statements.

Don't discuss reasons for termination of employees with remaining employees.

Figure 51. Guidelines for Conducting Involuntary Terminations

V o l u n t a r y t e r m i n a t i o n s

V o l u n t a r y t e rmina t ions m a y be gene ra l l y ca t egor i zed as r e s i g n a t i o n s and

re t i rements . V o l u n t a r y r e s igna t ion is w h e n an e m p l o y e e d e c i d e s to qui t or leave.

V o l u n t a r y re t i r ement ( s o m e t i m e s r e f e r r e d to as ear ly r e t i r emen t ) is f r e q u e n t l y

o f f e r e d wi th addi t iona l bene f i t s to e n c o u r a g e the cho ice a n d is o f t e n p r o p o s e d

w h e n an o rgan iza t ion an t ic ipa tes l a y o f f s and w a n t s to r e d u c e the n u m b e r of

e m p l o y e e s w h o h a v e to be t e rmina ted . It is a se l f - se l ec t ion p roces s .

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Senior management must communicate to employees that the plan is truly

voluntary and that no one should feel forced to retire.

When a voluntary retirement plan is offered to employees, the employer must

take care to identify what units of the company will be eligible to participate .

(if the program is not company-wide). Eligibility is occasionally limited to the

areas of the organization where necessary reductions in staff are required (such

as plant versus office, engineering versus sales).

Companies have received complaints from employees in nonpartieipating

units, but the courts have generally upheld this practice.

Under the Age Discrimination in Employment Act (ADEA), companies often

face charges in which a recipient of an early retirement incentive alleges that he

or she was discharged because of age and coerced to accept early retirement.

The Older Worker's Benefit Protection Act requires that voluntary waivers of

rights or claims under the ADEA are valid only when such waivers are

"knowingly and voluntarily" made.

The act also provides, among other provisions, that such waivers must be in

writing and that employees considering signing a waiver must:

• Receive severance payments or some other thing of value to which they

would not otherwise be entitled.

• Be advised in writing to consult an attorney before signing the waiver.

• Be given at least 21 days to consider the agreement (45 days if more than

one employee is exiting at the same time or as part of the same decision-

making process even if implemented at different times) and be able to

revoke the agreement for up to seven days after it is signed.

• Be given, where more than one employee is exiting, certain disclosure

information designed to allow the employee (or his or her attorney) to

determine if the terminations have had an adverse impact on older

workers.

Employers should not base a denial of severance pay on pension eligibility. This

has been ruled unlawful because the distinction is based on retirement status,

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which is age-related. A company may require an employee to defer pension

benefits as a condition of eligibility to receive severance benefits.

Exit Interviews An exit interview is an interview conducted when an employee is terminating

with a company. Upon departure, or soon after, employees are asked to share

their views on selected issues. Exit interviews with departing employees provide

an opportunity to gain candid information on conditions in the organization as

well as specific issues that may have contributed to the employee's decision to

leave. Most often they are conducted with voluntary terminations. Specific

circumstances generally dictate whether exit interviews are done in involuntary

terminations. (For example, it's not likely that a company would do an exit

interview with an employee terminated for an unlawful act.)

Exit interviews can have value not only in terms of assessing and improving

corporate culture but also in minimizing an employer's exposure in litigation.

Assume that an employee claims constructive discharge. If he or she did not raise

the legal basis for the claim during the exit interview, this is a fact that may be

helpful to the employer in litigation. Conversely, if the employee does raise legal

concerns in the exit interview, the employer has an opportunity to address them

and a responsibility to investigate any allegations.

How to Conduct the Interview Some organizations use an exit form to collect the information. While it takes more

time and effort, there is much value in conducting exit interviews face-to-face.

Many times forms are not completed and/or returned. Face-to-face interviews not

only ensure a higher response rate; they allow the interviewer to observe nonverbal

cues and provide the opportunity to probe any key perspectives in more detail.

Who Should Do the Interviewing If the exit interview is done in person, a neutral party should conduct the

discussion in order to gain the confidence of the departing employee and

facilitate candid responses. Oftentimes, HR assumes this responsibility. But

whoever does the interview needs to maintain a nonbiased demeanor and listen

without judging the responses.

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The interview is typically confidential. The employee is customarily assured by

the interviewer that his or her name will not be directly associated with any

comments he or she makes in the interview.

Sometimes the assurance is given that remarks will not be shared directly with

the supervisor but instead will be shared with the supervisor's management.

This ensures departing employees that their comments will not be ignored;

rather, they will be considered along with exit interview comments made by

other departing employees in formulating any necessary corrective action.

Whether an organization collects information from the exiting employee in person

or by using a form, the importance of the feedback collected should be clearly

conveyed. In doing so, employees will be more thoughtful about their responses.

What to Ask in an Exit Interview Employees may leave a company for a variety of reasons, many of which may

not be within the control of the company. Spouses may need to relocate. The

employee may have had a shift in lifestyle and want to make a career change.

In addition to asking why the employee is leaving, the exit interview should focus

on factors that are aligned to the organization's business needs. Open-ended

questions should be used to probe areas such as:

• Initial selection practices.

• The orientation process.

• The degree to which the job met the individual's expectations.

• Training and development provided.

• Opportunities for advancement.

• Organizational culture.

• Organizational communication.

• Compensation and benefits.

• Direct supervision.

• Ideas for improving the department in which she or he worked.

• What was enjoyable.

• What was frustrating.

• Ideas for improving the individual's position.

• Whether the individual would recommend employment with the organization

to others.

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Many organizations ask employees when they started to think about leaving and

if they ever thought about transfers.

It should be noted that exit interviews are not the appropriate forum for

convincing employees to change their minds about leaving the organization.

Further, an exit interview is not the place to discuss whether or not the

organization will provide an employment reference.

Outplacement is a systematic process by which a laid-off or terminated

employee is counseled in the techniques of career self-appraisal and in securing a

new job that is appropriate to his or her talents and needs. It is frequently offered

as part of a severance package; benefit packages may vary in length between three

months to one year or, in some instances, until a suitable job is accepted.

It can be helpful for a company to have an ongoing arrangement with an

outplacement firm so that the services are in place and immediately available

when and if they are needed. Typical outplacement services will include

career assessment tools, resume and cover letter writing, interviewing skill

building, group or one-one-one coaching, and access to job-seeking portals.

Outplacement assistance includes:

• Helping dismissed workers deal with the psychological aspects of losing a job.

• Retraining workers to develop skills that are in demand.

• Conducting personal assessments or vocational tests to determine workers'

abilities and job preferences.

• Helping workers with job searches and assisting with:

• Creating a resume.

• Developing interviewing skills.

® Learning marketing techniques and strategies.

» Contacting search firms and employment agencies.

® Answering want ads.

« Negotiating salary and benefits.

® Evaluating j ob offers.

Effective Outplacement Strategies

© 2011 SHRM 2-239



Benefits of Outplacement Services Offering outplacement assistance:

• Ensures that future reductions will be less stressful and traumatic.

• Enhances the morale of those who remain.

• Enables employees to find jobs faster than might otherwise be possible.

• Reduces the threat of litigation.

• Underscores the organization's moral and ethical responsibility toward its

employees.

Outplacement firms are also discussed in Section 2-7 in this module,

"Recruitment."

Employer Defenses Against Litigation There are a number of actions an employer can take to minimize litigation

related to terminations. An employer should:

• Have an internal complaint resolution process in place.

• Review its personnel manual, internal memoranda, employee handbook, and

any other relevant agreements to see if any of these limit its options to create

enforceable contracts.

• Document disciplinary actions.

• Analyze which protected workers may be affected in the event of a

reduction.

• Determine what the company will do to ease the employees' transition.

• Obtain legally valid waivers and releases.

• Follow disciplinary and termination procedures.

• Conduct exit interviews and sign and date notes from the interviews. It is

important to preserve the dignity of the employee. How the employee is

treated at the time of termination may determine whether litigation results.

• Engage in workforce planning activities that avoid the need for involuntary

terminations.



Progress Check


1. A corporation must significantly reduce its workforce because of increased costs resulting

from changes in the regulatory environment. What should HR do to help the retained

employees cope?

( ) a. Survey retained employees.

( ) b. Disclose outplacement and severance terms.

( ) c. Discount any rumors.

( ) d. Explain the regulatory changes.

2. Two days after an African-American employee filed a claim of racial discrimination, the

employee was fired for violation of a long-standing safety rule. This may be an example of

( ) a. cause.

( ) b. retaliation.

( ) c. reverse discrimination.

( ) d. constructive discharge.

Refer to the following information to answer Questions 3 and 4.

An employee worked in accounts payable for a major bottling company for ten years. The

employee was well liked by the manager and coworkers. Recently, the employee's manager

retired. A new company manager gave the employee additional work that was beyond the scope

of the job and became irate if mistakes were made. The employee was given more work than

other accounts payable employees and was expected to work late, without any advance notice, to

complete it. The manager corrected the employee in front of other employees and made sarcastic

comments about the employee's ability. After discussing the situation with the manager and

seeing no change, the employee resigned. The manager then replaced the employee with a friend

from another company.

3. In this situation, the former employee could claim that the

( ) a. company cannot change the scope of the work simply because of a new manager.

( ) b. manager was not aware of how the work should be done.

( ) c. manager knew working conditions were unacceptable but did not remedy them.

( ) d. manager obviously wanted to replace the employee with a friend.



4. If the employee files suit, the employee can allege

( ) a. retaliatory discharge.

( ) b. constructive discharge.

( ) c. coerced retirement.

( ) d. involuntary waiver.

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1. d (p. 2-231)

2. b (p. 2-233)

3. c (p. 2-232)

4. b (p. 2-232)

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/orkforce Planning

id Employment

11




• Federal/state/local employment-related laws and regulations related to workforce planning and .

. employment.

• Organizational documentation requirements to meet federal and state requirements.

• Employee records management (for example, electronic/paper, retention, disposal).

• Technology to support HR activities.

lurce: HR Certification Institute


Confusion frequently occurs concerning the legal requirements for employer

record keeping and the retention of employee files and other employment-

related records. Often this confusion is the result of the complexity and variety

of record-keeping requirements:

• Employer record-keeping obligations arise under many federal and state

laws.

• Some requirements apply to most employers; others apply to government

contractors and subcontractors.

• Some requirements depend on the number of employees or the purposes of

record keeping.

• Some requirements depend on the industry, the location, and/or the

customers.

• The same or similar records are often required by more than one law, but the

periods of retention may vary.

For HR practitioners, the task of records management can be daunting. It requires

perseverance. But a methodical approach can help. Figure 52 on the following

pages provides a chart intended as a reference for HR practitioners regarding:

• What records must be kept under each federal law.

• The retention period for those records.

• The applicability for each federal law.

In addition to the information presented in the chart, HR practitioners should

consider the following general recommendations and guidelines.

• Investigate federal requirements.

• Investigate applicable individual state requirements.

• When the same or similar records are required by more than one law but the

period of retention varies, retain the information for the longer period of time.

• Be aware that many states have laws regulating employees' access to their

personnel files.

• Establish a system for auditing the company's record keeping (including

personnel files) as well as a consistent program for record destruction.

• Keep in mind that in the event of a discrimination charge or lawsuit, all

relevant records must be kept until the final disposition.


Law Records/Reports Retention Requirements

Age Discrimination in Employment Act (ADEA) Applies to employers with at least 20 employees

• Payroll or other records (including those for temporary positions) showing employees' names, addresses, dates of birth, occupations, rates of pay, and weekly compensation.

• Applications (including those for temporary employment) ; personnel records relating to promotion, demotion, transfer, selection for training, layoff, recall, or discharge; job advert isements and postings; copies of employee benefit plans, seniority system, and merit systems.

Three years for payroll or other records showing basic employee information; one year for applications and other personnel records. Where a charge or lawsuit is filed, all relevant records must be kept until final disposit ion of the charge or lawsuit.

Americans with Disabilities Act (ADA) Applies to employers with at least 15 employees

Applications and other personnel records (e.g., promotions, transfers, demotions, layoffs, terminations); requests for reasonable accommodat ion.

One year f rom making the record or taking the personnel action.

Where a charge or lawsuit is filed, all relevant records must be kept until final disposit ion.

Civil Rights Act of 1964, Title VII Applies to employers with at least 15 employees

Applications and other personnel records (e.g., promotions, transfers, demotions, layoffs, terminations), including records for temporary or seasonal positions. Requires the filing of an annual EEO-1 report (for federal contractors with 50 or more employees and contracts worth more than $50,000 and nongovernment contractors with 100 or more employees).

One year f rom making the record or taking the personnel action. Where a charge or lawsuit is filed, all relevant records must be kept until f inal disposit ion. A copy of the current EEO-1 report must be retained.

Consolidated Omnibus Budget Reconciliation Act (COBRA)

Provide written notice to employees and their dependents of their option to continue group health-plan coverage fol lowing certain qualifying events, such as the employee's termination, layoff, or reduction in working hours, entit lement to Medicare, and the death or divorce of the employee (which would cause dependents to lose coverage under the employer 's plan).

Figure 52. Federal Record Retention Requirements for Employers (continued next page)

2011 SHRM 2-247 ^ ^ Printed on 30% post-consumer waste recycled paper.


• Davis-Bacon Act • Service Contract

Act • Walsh-Healey

Public Contracts Act

Apply to federal contractors

Records containing the fol lowing information for each employee:

• Basic employee data, to include name, address, Social Security number, gender, date of birth, occupation, and job classification.

• Walsh-Healey requires retention of current work permits for minors.

• Compensat ion records, to include: » Amounts and dates of actual payment. ® Period of service covered. ® Daily and weekly hours, e Straight t ime and overt ime hours/pay. o Fringe benefits paid. ® Deductions and additions.

• Walsh-Healey requires retention of data on job-related injuries and il lnesses (logs with dates and summaries and details of accidents).

Three years from the end of the contract.

Employee Polygraph Protection Act

Polygraph test results and the reasons for administering. Three years.

Employee Retirement Income Security Act (ERISA)

Maintain, disclose to participants and beneficiaries, and report to the Department of Labor, the IRS, and the Pension Benefit Guaranty Corporation (PBGC) certain reports, documents, information, and materials. Except for specific exemptions, ERISA's reporting and disclosure requirements apply to all pension and welfare plans, including: • Summary plan descriptions (updated with changes and

modifications). • Annual reports. ® Notice of reportable events (such as plan amendments that may

decrease benefits, a substantial decrease in the number of plan participants, etc.).

« Plan terminations.

Employers must maintain ERISA-related records used to develop all required plan descript ions or reports, as well as other materials needed to certify information, for a min imum of six years. Records used to determine benefits that are/will become due for each employee in plan must be retained as long as they are relevant.

Equal Pay Act Payroll records, including t imecards, wage rates, addit ions to/deductions from wages paid, records explaining gender-based wage differentials.

Three years.



© 2011 SHRM

nuitrvruK^c fLAnniNb anu bmrLUTmcN I section z-1 I


Executive Order 11246 Applies to federal contractors and subcontractors

Requires the preparation of AAP for minorities and women. Applications and other personnel records that support employment decisions (e.g., hires, promotions, terminations) are considered "support data" and must be retained along with AAP; this includes applicant flow data. In accordance with Internet applicant regulations, federal contractors and subcontractors must retain: • Records related to external resume database searches. • Records related to resumes added to internal databases

as well as to searches done on those databases. • Records related to job seekers contacted regarding their

interest in a particular position. • Expressions of interest of all job seekers considered for a

particular position. • All voluntary self-identification information submitted by

job seekers, regardless of whether the job seeker satisfies the definition of Internet applicant.

AAPs must be updated annually; AAPs, supporting documentation, and documentation of good-faith efforts must be retained for the current year and prior year.

Personnel/employment records must be retained for two years. If there are fewer than 150 employees or contract is less than $150,000, retention period is one year. However, all employment records that support an AAP must be retained as described above.

Fair and Accurate Credit Transactions (FACT) Act

Consumer credit reports. As of June 1, 2005, every employer that employs one or more employees must shred documents that contain information derived from a credit report. The penalties for failure to observe shredding rules include (1) civil liability for damages sustained by consumer for willful noncompliance up to $1,000; (2) punitive damages for willful noncompliance; (3) actual damages caused to consumer for negligent noncompliance; (4) attorney's fees in case of any successful action to enforce liability; and (5) federal fines of up to $2,500 per violation for knowing violations that constitute pattern or practice of violations. Class action liability is not directly mentioned but could be a possibility.


© 2011 SHRM


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Fair Labor Standards Act (FLSA)

Payroll or other records containing the fol lowing information for each employee: • Employee's name, home address, date of birth (if under 19 years of

age), gender, and occupation. • T ime of day/day of week for beginning of workweek. • Regular hourly rate of pay or other basis of payment (hourly, daily,

weekly, piece rate, commission on sales, etc.). • Daily hours worked and total hours for each workweek. • Total daily or weekly straight-time earnings (exclusive of overt ime

premiums). • Total additions to and deductions from wages for each pay period. • Total wages per pay period. • Date of each payment of wages and the period covered by the

payment. For executive, administrative, and professional employees or those employed in outside sales, employers must maintain records that reflect the basis on which wages are paid in sufficient detail to permit calculations of the employee's total remuneration and perquisites, including fringe benefits.

For at least three years.

Family and Medical Leave Act (FMLA) Applies to employers with at least 50 employees in a 75-mile radius

Records containing the fol lowing information: • Basic employee data, to include name, address, occupation, rate of

pay, terms of compensat ion, daily and weekly hours worked per pay period, addit ions to/deductions from wages, and total compensat ion.

• Dates of leave taken by eligible employees. (Leave must be designated as FMLA leave.)

• For intermittent leave taken, the hours of leave. • Copies of employee notices and documents describing employee

benefits or policies and practices regarding paid and unpaid leave. • Records of premium payments of employee benefits. • Records of any dispute regarding designation of leave.

Three years.



© 2011 SHRM



Federal Insurance Contribution Act Federal Unemployment Tax Act Federal income tax withholding

Records containing the fol lowing information: • Basic employee data, to include name, address, Social

Security number, gender, date of birth, occupation, and job classification.

• Compensat ion records, to include: ® Amounts and dates of actual payment. ® Period of service covered. ® Daily and weekly hours. « Straight t ime and overt ime hours/pay. ® Annuity and pension payments. ® Fringe benefits paid. ® Tips. ® Deductions and additions.

• Tax records, to include: ® Amounts of wages subject to withholding. © Agreements with employee to withhold additional tax. ® Actual taxes withheld and dates withheld. ® Reason for any difference between total tax payments

and actual tax payments. • Withholding forms (W-4, W4-E).

Four years f rom the date tax is due or tax is paid.

Occupational Safety and Health Act (OSHA) Appl ies to employers with at least ten employees

Log of occupational injuries and il lnesses. Supplementary record of injuries and illnesses. Completed annual summary of injuries and il lnesses. Must be posted annually.

Five years. Occupational Safety and Health Act (OSHA) Appl ies to employers with at least ten employees

Medical records/records of toxic substance exposure for each employee.

Employee's job tenure plus 30 years.

Immigration Reform and Control Act (IRCA)

INS Form I-9 (Employee Eligibility Verif ication) signed by each newly hired employee and the employer.

Three years after date of hire or one year after date of termination, whichever is later.


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2-251


Rehabilitation Act of 1973 Applies to federal contractors

Personnel/employment records (e.g., requests for accommodat ion, results of physical exams, job advert isements/postings, applications, resumes, tests/test results, interview notes, records regarding hiring, assignment, promotion, demotion, transfer, layoff, termination, terms of compensat ion and selection for training/ apprenticeship).

Two years. (If contractor has fewer than 150 employees or contract of less than $150,000, retention period is one year.)


Data on complaints of disability discrimination and actions taken. Where a charge or lawsuit is filed, all relevant records must be kept until final disposition.


AAP for individuals with disabilities. AAPs must be updated annually; no requirement to retain expired plans.

Uniform Guidelines on Employee Selection Procedures

For employers with 100 or more employees, records showing impact of selection process for each job, maintained by gender for each racial or ethnic group that constitutes at least 2% of the labor force in the relevant labor area or 2% of the applicable workforce.

For employers with fewer than 100 employees, records for each year of number of persons hired, promoted, and terminated, applicants hired for each job by gender, and where appropriate by race and national origin.

Records include applications, tests, and other types of selection procedures used as a basis for employment decisions, such as hiring, promotion, transfer, demotion, training, and termination.

Adverse impact analysis of selection process must be conducted annually.

Where adverse impact is found in selection process, records must be maintained for two years after the adverse impact is el iminated.

For federal contractors, during compl iance review from OFCCP, data from prior year's analysis must be available and for current year if contractor is six months into AAP plan year. (See Executive Order 11246.)

Vietnam Era Veterans Readjustment Assistance Act Applies to federal contractors

Personnel/employment records. (See Rehabil itation Act of 1973.)

AAP for covered veterans.

Filing of the annual VETS-100 report.

Job openings for positions must be listed with the state employment service.

Two years (if contractor has fewer than 150 employees or contract of less than $150,000, one year).

AAPs must be updated annually; no requirement to retain expired plans.

A copy of the current VETS-100 report must be retained.

Source: Wal lace C. Bonapart and Cornelia Gamlem. "Federal Record Retention Requirements for Employers." SHRM White Paper. Alexandria, Virginia: Society for Human Resource Management, 2006.

Figure 52. Federal Record Retention Requirements for Employers (concluded)


© 2011 SHRM


Employers face several layers of laws requiring them to maintain employment

records for extended periods of time. Requirements are spread throughout

numerous federal and state statutes and regulations. Further, not all

requirements apply to all employers.

Employers should consider not only the mandatory record retention

requirements but also the statutes of limitations under state law with regard to

claims that potentially may apply to employers. For example, contract, tort, and

fraud claims increasingly are being brought against employers. In some cases,

the statutes of limitations for these common-law claims are longer than the

statutory record retention requirements. Although not required by law,

employers are well advised to consider the statutes of limitations in establishing

their record retention schedules.

HR also needs to ensure that, in the event a claim is asserted or filed or a

government investigation is initiated or threatened, documents even arguably

related to the claim or investigation are retained for the duration of the claim

or investigation until final disposition (including appeals), even if longer than

the retention guidelines ordinarily applied.

In terms of the scope of documents (including e-mail) that must be retained, a

number of courts have imposed extremely rigorous obligations on employers

and their counsel. Don't try to determine the scope of this obligation on your

own. When a claim or investigation is initiated or threatened, immediately ask

your counsel to help you determine the scope of your obligation with regard to

preserving documents.

A conscientious HR practitioner must undertake considerable due diligence to

help ensure organizational compliance with record-keeping requirements.




1. All of the following statements accurately describe employee records management EXCEPT

( ) a. Requirements can vary based on the number of employees.

( ) b. State requirements are always the same as federal requirements.

( ) c. Employers are required to keep all relevant records until final disposition in a

lawsuit.

( ) d. Similar records may be required by more than one law.

2. What should an employer do if the requirements for the same record differ between three

laws?

( ) a. Keep duplicates of each record in multiple files according to the different

requirements.

( ) b. Make a judgment about maximum retention based on the most important law.

( ) c. Retain the information for the longest period of time required.

( ) d. Keep the records for the shortest time required unless it involves a federal

contractor.

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1. b (p . 2-246)

2. c (p. 2-246)

You have completed Module 2: Workforce Planning and Employment of

the SHRM Learning System. Next, check your understanding by

completing the Web-based module-specific tests to help you identify any

concepts that need additional study.

© 2011 SHRM


2-255


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Bland, Timothy S. "Basics of Title VII and the Civil Rights Act of 1991." SHRM White Paper. Alexandria, Virginia: Society for Human Resource Management, 2000.

Bonapart, Wallace C., and Cornelia Gamlem. "Federal Record Retention Requirements for Employers." SHRM White Paper. Alexandria, Virginia: Society for Human Resource Management, 2006.

Bresler, Sam. "Minimizing Workplace Sexual Harassment: A Preventive Strategy." SHRM White Paper. Alexandria, Virginia: Society for Human Resource Management, 1999.

Bureau of National Affairs. Fair Employment Practices, Vols. 1, 2, and 3. Washington, D.C.: Bureau of National Affairs, periodically updated.

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Byars, Lloyd L., and Leslie W. Rue. Human Resource Management, 8th ed. New York: McGraw-Hill/Irwin, 2004.

Cappelli, Peter. "Making the Most of On-Line Recruiting." Harvard Business Review, March 2001.

Casellas, Gilbert F., and Irene L. Hill. "Sexual Harassment: Prevention and Avoiding Liability." SHRM White Paper. Alexandria, Virginia: Society for Human Resource Management, 1999.

Cornell University Law School, Legal Information Institute, www.law.cornell.edu.

Drake, Nina, and Ian Robb. "Exit Interviews." SHRM White Paper. Alexandria, Virginia: Society for Human Resource Management, 2002.

Eisenberg, Bernie, Cydney Kilduff, Susan Burleigh, and Kevin C. Wilson. "The Role of the Value Proposition and Employment Branding in Retaining Top Talent." SHRM White Paper. Alexandria, Virginia: Society for Human Resource Management, 2002.

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Glossary

A ADA Amendments Act—Amendments to Americans with Disabilities Act covering mitigating measures and definition of individuals regarded as having a disability.

Adverse impact—Occurs when the selection rate for a protected class is less than 80% of the rate for the class with the highest selection rate; also known as disparate impact.

Affirmative action (AA)—Practice in which employers identify conspicuous imbalances in their workforce and take positive steps to correct underrepresentation of protected classes.

Affirmative action plans (AAPs)—Plans that focus on the hiring, training, promoting, compensating, and terminating of protected classes.

Age Discrimination in Employment Act (ADEA)—Act that prohibits discrimination in employment for persons age 40 and over except where age is a bona fide occupational qualification.

Albemarle Paper v. Moody—1975 court ruling that items used to validate employment requirements must be job-related.

Alternative staffing—Use of alternative recruiting sources and workers who are not regular employees; also known as flexible staffing.

Americans with Disabilities Act (ADA)— Act that prohibits discrimination against a qualified individual with a disability because of his/her disability.

Aptitude tests—Tests that measure the general ability or capacity to learn or acquire a new skill.

Assessment centers—Method of evaluating candidates using content-valid work samples of a job; typically for managerial positions.

Availability analysis—Analysis in which organization considers internal and external availability in determining theoretical availability of minorities and women for established job groups.

B Behavioral interview—Type of interview that focuses on how applicant previously handled real work situations.

Bona fide occupational qualification (BFOQ)—Situation in which gender, religion, or national origin is reasonably necessary to carrying out a particular job function in the normal operations of a business or enterprise.

c City of Richmond v. J. A. Croson Company—1989 Court ruling that the numerical quota system of Richmond, Virginia, was unconstitutional because the city had not laid the proper groundwork and had not adequately identified or documented discrimination.

Civil Rights Act of 1964—First comprehensive U.S. law making it illegal to discriminate on the basis of race, color, religion, sex, or national origin.


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Civil Rights Act of 1991—Act that expands the possible damage awards available to victims of intentional discrimination to include compensatory and punitive damages; gives plaintiffs in cases of alleged intentional discrimination the right to a jury trial.

Closed questions—Questions that can usually be answered with yes or no.

Co-employment—Situation in which an organization shares joint responsibility and liability for their alternative workers with an alternative staffing supplier; also known as joint employment.

Cognitive ability tests—Tests that assess skills the candidate has already learned.

Competency model—Set of job competencies that together make up a profile for success for a particular job.

Compliance evaluation—Evaluation that requires an organization to provide details on and documentation of its affirmative action plan.

Concurrent validity—Type of criterion-related validity determined by relating the test scores of a group of test takers who take a test (Test A) to some other criterion measure (Test B) that is administered at the same time.

Congressional Accountability Act—Act that requires that federal employee relations legislation enacted by Congress apply to employees of Congress.

Construct validity—Extent to which a selection device measures the theoretical construct or trait (e.g., intelligence or mechanical comprehension).

Constructive discharge—Occurs when an employer makes working conditions so

intolerable that an employee has no choice but to resign.

Consumer Credit Protection Act—Act that limits the amount of wages that can be garnished or withheld in any one week by an employer to satisfy creditors.

Content validity—Degree to which an interview, test, or other selection device measures the knowledge, skills, abilities, or other qualifications that are part of the job.

Contrast effect—Type of interviewer bias; when strong candidates who interview after weak ones may appear even more qualified than they actually are because of the contrast.

Core competencies—Characteristics that are valued by an organization and are tied to its vision, mission, and method of operating.

Criterion-related validity—Refers to the link between a selection device and job performance.

Cultural noise—Failure to recognize responses of a candidate that are socially acceptable rather than factual.

D Delphi technique—Forecasting technique that progressively collects information from a group without physically assembling the contributors.

Directive interview—Type of interview in which interviewer poses specific questions to a candidate and keeps control.

Disability—Physical or mental impairment that substantially limits major life activities.

Disparate impact—Occurs when the selection rate for a protected class is less than 80% of the rate for the class with the highest selection rate; also known as adverse impact.

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Disparate treatment—Occurs when protected classes are intentionally treated differently from other employees or are evaluated by different standards.

Ellerth v. Burlington Northern Industries—Court ruling that distinguished between supervisor harassment that results in tangible employment action and supervisor harassment that does not.

Employee Polygraph Protection Act—Act that makes it unlawful for employers to use polygraphs in employment decisions except for a few narrowly defined exceptions for "security-sensitive" positions.

Employment-at-will—Common-law principle stating that employers have the right to hire, fire, demote, and promote whomever they choose for any reason unless there is a law or contract to the contrary and employees have the right to quit a job at any time.

Employment branding—Process of positioning an organization as an "employer of choice" in the labor market.

Employment contract—Agreement between an employer and an employee that explains the employment relationship.

Employment offer—Makes the hiring decision official; should immediately follow the final decision to hire a candidate; formally communicated through an offer letter.

Employment practices liability insurance (EPLI)—Protects an employer against claims by workers that their legal rights as employees of the company have been violated.

Essential function—Primary job duties that a qualified individual must be able to

perform, either with or without accommodation; a function may be considered essential because it is required in a job or because it is highly specialized.

Executive search firms—External recruiting method; firms seek out candidates, usually for executive, managerial, or professional positions.

Exit interview—Interview conducted when an employee is terminating with a company in which employee is asked to share views on selected issues.

Expatriates—Collective term for employees sent abroad to work in a country other than where they live.

F Fair and Accurate Credit Transactions Act (FACT)—Act that provides some relief to employers using third parties to conduct workplace investigations.

Fair Credit Reporting Act (FCRA)—Act that protects privacy of background information and ensures that information supplied is accurate.

Faragher v. City of Boca Raton—Court ruling that distinguished between supervisor harassment that results in tangible employment action and supervisor harassment that does not.

First-impression error—Type of interviewer bias in which interviewer makes snap judgments and lets first impression (either positive or negative) cloud the interview.

Flexible staffing—Use of alternative recruiting sources and workers who are not regular employees; also known as alternative staffing.

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G Garnishment—Occurs when a creditor obtains a court order requiring an employer to attach an employee's earnings in order to pay back a debt.

General Dynamics Land Systems, Inc., v. Cline—Case in which Supreme Court held that the Age Discrimination in Employment Act does not protect younger workers, even if they are over age 40, from workplace decisions that favor older workers.

Genetic Information Nondiscrimination Act (GINA)—Act that prohibits discrimination against individuals on the basis of their genetic information in both employment and health care.

Glass ceiling—Invisible barrier that blocks minorities and women from attaining senior executive positions.

Gratz v. Bollinger— Case in which Supreme Court held that University of Michigan's undergraduate admission program was not sufficiently "narrowly tailored" to consider race as a factor in admission decisions in order to achieve goal of a diverse student body.

Griggs v. Duke Power—1971 case that recognized adverse impact discrimination.

Group interview—Type of interview where multiple job candidates are interviewed by one or more interviewers at the same time or where multiple people in an organization interview a single job candidate.

Grutter v. Bollinger—Case in which Supreme Court held that University of Michigan's law school admission program was sufficiently "narrowly tailored" to consider race as a factor in admission decisions in order to achieve goal of a diverse student body.

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H Halo effect—Type of interviewer bias in which interviewer allows one strong point in candidate's favor to overshadow all other information.

Harris v. Forklift Systems, Inc.—Court ruling that established "reasonable person" standard in a sexual harassment case.

Honesty/integrity tests—Measures of applicants' propensity toward undesirable behaviors such as lying, stealing, taking drugs, or abusing alcohol.

Horn effect—Type of interviewer bias in which the interviewer allows one strong point that works against candidate to overshadow all other information.

Host-country nationals (HCNs)— Employees hired for jobs in their own countries; also known as local nationals.

Hostile environment harassment—Occurs when sexual or other discriminatory conduct is so severe and pervasive that it interferes with an individual's performance; creates an intimidating, threatening, or humiliating work environment; or perpetuates a situation that affects the employee's psychological well-being.

I

Immigration Reform and Control Act (IRCA)—Act that prohibits discrimination against job applicants on the basis of national origin or citizenship; establishes penalties for hiring illegal aliens and requires employers to establish each employee's identity and eligibility to work.

Independent contractors—Self-employed individuals hired on a contract basis for specialized services.

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Inpatriates—Traditional term used to describe employees brought in from another country to work in the headquarters country for a specified period.

International assignee—All-encompassing term used to describe anyone on an international assignment.

Involuntary termination—When employers decide to discharge particular employees for cause (e.g., poor performance, violations of employer policy).

J Job—Collection of activities (tasks) and responsibilities that an employee is responsible to conduct.

Job analysis—Systematic study of jobs to determine what activities (tasks) and responsibilities they include, relative importance and relationship with other jobs, personal qualifications necessary for performance, and conditions under which work is performed.

Job applicant—According to EEO regulations, anyone who expresses an interest in employment, regardless of whether that person meets the employer's minimum qualifications for the job.

Job bidding—Internal recruiting method that allows employees to indicate an interest in a position before one becomes available.

Job competencies—Knowledge, skills, and abilities (KSAs) and other personal characteristics that work together to produce outstanding performance in a given area of responsibility.

Job description—Summarizes most important features of a job, including required tasks, knowledge, skills, abilities, responsibilities, and reporting structure.

Job group analysis—Part of affirmative action plan that lists all job titles that comprise each job group having similar content and responsibilities, wage rates, and opportunities for advancement.

Job posting—Internal recruiting method that allows current employees the chance to respond to announcements of positions.

Job specification—Spells out qualifications necessary for an incumbent to be able to perform a job.

Jobs for Veterans Act (JVA)— Amendment to Vietnam Era Veterans Readjustment Assistance Act; deals with discrimination against certain veterans by the U.S. government and federal contractors.

Johnson v. Santa Clara County Transportation Agency—Court ruling that endorsed using gender as one factor in an employment decision if underrepresentation is shown and if the affirmative action plan is not a quota system.

Joint employment—Situation in which an organization shares joint responsibility and liability for their alternative workers with an alternative staffing supplier; also known as co-employment.

Judgmental forecasts—Use of information from past and present to predict future conditions.

K,L Kolstad v. American Dental Association— Case in which Supreme Court held that the availability of punitive damages depends on the motive of the discriminator rather than the nature of the conduct.

Lilly Ledbetter Fair Pay Act—Act that creates a rolling time frame for filing wage discrimination claims and expands plaintiff

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field beyond employee who was discriminated against.

Local nationals—Employees hired for jobs in their own countries; also known as host-country nationals (HCNs).

M McDonnell Douglas Corp. v. Green—Case that established criteria for disparate treatment.

McKennon v. Nashville Banner Publishing Co.—Case in which Supreme Court held that evidence of misconduct acquired after the decision to terminate cannot free an employer from liability, even if the misconduct would have justified terminating the employee.

Meritor Savings Bank v. Vinson—Court ruling that first held that sexual harassment violates Title VII of the Civil Rights Act of 1964 regardless of whether it is quid pro quo or hostile environment harassment.

Multiple linear regression—Statistical method that can be used to project future demand; several variables are utilized.

N Negative emphasis—Type of interviewer bias that involves rejecting a candidate on the basis of a small amount of negative information.

Nominal group technique—Group of individuals who meet face-to-face to forecast ideas and assumptions and prioritize issues.

Nondirective interview—Type of interview in which interviewer asks open questions and provides general direction but allows applicant to guide process.

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Offer letter—Document that formally communicates the employment offer, making the hiring decision official.

Oncale v. Sundowner Offshore Service, Inc.—Court ruling that same-gender harassment is actionable under Title VII.

On-call workers—Employees who report to work only when needed.

Open question—Type of question that typically begins with what, where, why, when, or how.

Organizational display—Part of an affirmative action plan that provides a graphical presentation of the organizational units, including their interrelationships.

Organizational exit—Process of managing the way people leave an organization.

Organizational profile—Depicts the staffing pattern of a facility to determine if barriers to equal employment opportunity exist within any organizational unit.

Organizational unit—Any discrete component of an organization in which there is a level of supervision responsible and accountable for the selection, compensation, etc., of employees within the unit.

Outplacement—Systematic process by which a laid-off or terminated employee is counseled in the techniques of career self-appraisal and in securing a new job that is appropriate to his or her talents and needs.

Outsourcing—Flexible staffing option in which an independent company with expertise in operating a specific function contracts with a company to assume full operational responsibility for the function.



P

Panel interview—Type of interview in which staictured questions are spread across a group; individual who is most competent in the relevant area usually asks the question.

Parent-country nationals (PCNs)— Citizens of an organization's headquarters country who reside and work abroad with the intent of returning to the home country.

Patterned interview—Type of interview in which interviewer asks each applicant questions that are from the same knowledge, skill, or ability area; also called targeted interview.

Payrolling—When a company needing help identifies specific people and refers them to a staffing firm, which employs them and assigns them to work at the company.

Pennsylvania State Police v. Suders—Case in which Supreme Court ruled on the use of the affirmative defense in a constructive discharge claim for an employer whose supervisors are charged with harassment.

PERM (Program Electronic Review Management)—Streamlined process for obtaining labor certification for foreign nationals seeking permanent residence through their employment.

Personality tests—Tests that measure person's social interaction skills and patterns of behavior.

Placement goals—Objectives or targets in an affirmative action plan that are set when the percentage of minorities or women in a job group is less than reasonably expected given their availability.

Polygraph test—Test that measures respiration, blood pressure, and perspiration while person is asked a series of questions; outcome is a diagnostic opinion about honesty.

Predictive validity—Type of criterion-related validity; degree to which predictions made by a test are confirmed by the later behavior of test takers.

Pregnancy Discrimination Act—Act that prohibits discrimination on the basis of pregnancy, childbirth, or related conditions.

Prescreening interview—Type of interview that is useful when an organization has a high volume of applicants for a job and face-to-face interviews are needed to judge prequalification factors.

Prima facie—Latin term for "on first view" or "at first appearance"; in an EEO case, when a plaintiff presents evidence of a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for its decision.

Privacy Act—Act that protects the employment records of federal government employees from disclosure without prior authorization.

Protected class—People who are covered under a federal or state antidiscrimination law.

Psychomotor tests—Tests that require a candidate to demonstrate a minimum degree of strength, physical dexterity, and coordination in a specialized skill area.

Q Quid pro quo harassment—Type of sexual harassment that occurs when an employee is forced to choose between giving in to a superior's sexual demands and forfeiting an economic benefit such as a pay increase, a promotion, or continued employment.

Quota—Involves hiring and promoting a fixed number of individuals based on race, gender, or other protected-class standards that must be met.

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R Realistic job preview (RJP)—Part of the selection process that provides an applicant with honest and complete information about a job and the work environment.

Reasonable accommodation—Modifying job application process, work environment, or circumstances under which job is performed to enable a qualified individual with a disability to be considered for the job and perform its essential functions.

Regents of the University of California v. Bakke—Court ruling that colleges and universities could legitimately consider race as a factor in the admissions process.

Rehabilitation Act—Act that prohibits discrimination based on physical or mental disabilities.

Reliability—Ability of an instrument to measure consistently.

Repatriates—Traditional term referring to employees who have returned home from an international assignment.

Repetitive interview—Type of interview in which interviewer asks every applicant the same questions; also called a structured interview.

Resume—Document prepared by job candidate (or professional hired by candidate) to highlight candidate's strengths and experience.

Retaliatory discharge—Result of an employer punishing an employee for engaging in activities protected by the law (e.g., filing a discrimination charge, opposing unlawful employer practices).

Retention—Ability to keep talented employees in an organization.

s School Board of Nassau v. Arline— Supreme Court ruling that persons with contagious diseases could be covered by the Rehabilitation Act of 1973.

School-to-work programs—Allow organizations to partner with communities and schools to help develop the skilled workforce they will need for the future.

Selection—Process of hiring the most suitable candidate for a vacant position.

Selection interview—Interview designed to probe areas of interest to interviewer in order to determine how well a job candidate meets the needs of the organization.

Sexual harassment—Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature.

Simple linear regression—Projection of future demand based on a past relationship; involves a single variable.

Simulations—Representations of real situations; give organizations the opportunity to speculate as to what would happen if certain courses of action were pursued.

Situational interview—Type of interview in which interviewer asks hypothetical questions designed to elicit stories and examples that demonstrate the applicant's skills and qualifications.

Skill banks—Computerized talent or skill inventories that can furnish a list of qualified people.

Skill tracking systems—Computerized talent or skill inventories that can furnish a list of qualified people.



Smith v. Jackson, Mississippi—Case in which Supreme Court held that Age Discrimination in Employment Act authorizes recovery on a disparate impact theory but with narrower scope than that provided under Title VII.

St. Mary's Honor Center v. Hicks—Court ruling that Title VII plaintiff must show that discrimination was the real reason for an employer's actions.

Staffing—HR function that identifies organizational human capital needs and attempts to provide an adequate supply of qualified individuals for jobs in an organization.

State (public) employment agencies— Agencies that provide employee screening, testing, and referral at no cost to the employer.

Stereotyping—Type of interviewer bias that involves forming generalized opinions about how people of a given gender, religion, or race appear, think, act, feel, or respond.

Stress interview—Type of interview in which interviewer assumes an aggressive posture to see how a candidate responds to stressful situations.

Structured interview—Type of interview in which interviewer asks every applicant the same questions; also called a repetitive interview.

Substance abuse tests—Measures intended to ensure a drug-free workplace.

T Targeted interview—Type of interview in which interviewer asks each applicant questions that are from the same knowledge, skill, or ability area; also called patterned interview.

Taxman v. Board of Education of Piscataway—Court ruling that nonremedial affirmative action plan cannot form the basis for deviating from the antidiscrimination mandate of Title VII.

Team interview—Type of interview used in situations where the position relies heavily on team cooperation; supervisors, subordinates, and peers are usually part of the process.

Third-country nationals (TCNs)— Traditional term used to describe employees who are citizens of countries other than where they work or where the organization's headquarters resides.

Trend and ratio analyses—Use of statistics to determine whether relationships exist between two variables.

Turnover—Annualized formula that tracks number of separations and total number of workforce employees for each month.

u Uniform Guidelines on Employee Selection Procedures—Procedural document designed to assist employers in complying with federal regulations prohibiting discrimination.

Uniformed Services Employment and Reemployment Rights Act (USERRA)— Act that protects the employment, reemployment, and retention rights of persons who serve or have served in the uniformed services.

United Steehvorkers v. Weber—Court ruling dealing with reverse discrimination charges; upheld that Title VII allows for voluntary, private, race-conscious programs aimed at eliminating racial imbalance in traditionally segregated job categories.


WORKFORCE PLANNING AND EMPLOYMENT Secti

V Validity—Ability of an instrument to measure what it is intended to measure.

Vicarious liability—Legal doctrine under which a party can be held liable for the wrongful actions of another party.

Vietnam Era Veterans Readjustment Assistance Act (VEVRAA)—Act that prohibits discrimination against certain veterans by the U.S. government and federal contractors.

w Washington v. Davis—Court ruling that dealt with job testing and discrimination.

on 2 10

Worker Adjustment and Retraining Notification (WARN) Act—Act that requires some employers to give a minimum of 60 days' notice if a plant is to close or if mass layoffs will occur.

Workforce analysis—List of job titles ranked from lowest- to highest-paid within an organizational unit.

Workforce planning—Process an organization uses to analyze its current base of employees and determine steps it must take to prepare for future skill and labor needs.

Y Yield ratios—Ratios that can help quantify recruitment efforts.

2-270


© 2011 SHRM


Index

Note: The page numbers used in this index include the module number, for example, page 2-48 refers to page 48 of Module 2.

A AA. See aff i rmative action AAPs. See aff i rmative action plans academic credentials, verification of, 2-204 action-oriented programs in aff irmative action

plans, 2-74 A D A . See Americans with Disabilities Act A D A Amendment s Act , 2 -11-2-12 , 2-37 A D A A A ( A D A Amendments Act), 2 -11-2-12 ,

2-37 A D E A . See Age Discrimination in Employment

Act adverse action, and consumer reports, 2-50 adverse impact. See disparate impact af f i rmat ive action, 2 -20-2-24 , 2-69 aff i rmat ive action plans, 2 -20-2-24 , 2-69, 2-76,

2-249, 2-252 action-oriented programs, 2-74 audits, 2-75, 2 -76 -2 -79 availability analysis, 2 -72-2-73 compliance with, 2 -76-2-79 , 2-80 designation of responsibility, 2-74 identification of problem areas, 2 -74-2 -75 job group analysis, 2 -71-2 -72 organizational display, 2-70 organizational profi le , 2 -69-2-71 p lacement goals, 2 -73-2-74 sections of, 2 -69 -2 -75 voluntary compliance with, 2-80 workforce analysis, 2 -70-2-71

Age Discrimination in Employment Act, 2 - 8 - 2 -

10, 2-37, 2 -83-2 -84 , 2-236, 2-247 Albemarle Paper v. Moody, 2-62 alternative staffing, 2 -176-2-181 American Airlines, Leonel v., 2 -212-2-213 American Dental Association, Kolstad v., 2 - 7 - 2 -

8 Americans with Disabilities Act, 2 -11-2-15 , 2-

37, 2 -212-2-213 , 2-247

analyzing application forms, 2 -187-2 -189 annual reporting form, Equal Employment

Opportunity Act, 2 -65 -2 -66 applicant f low data, 2 -66 -2 -68 applicant notification, 2-190 applicant, Internet, 2 -67-2-68 , 2 -156-2 -157 applicant, job, 2 -66-2-68 applicants, previous, as recruitment source, 2-

153,2-161 application forms, 2 -187 -2 -189 aptitude tests, 2-200 Arline, School Board of Nassau v., 2-26 assessment centers, 2-201 audits of aff i rmative action, 2-75, 2 -76 -2 -79 Australian Free Trade/Special ty Occupat ion

Worker visas, 2-33 availability analysis, 2 -72 -2 -73

B B- l visas, 2-33 background investigation, 2 -203 -2 -205 Bakke, Regents of the University of California

v., 2-81 behavioral interview, 2-192 BFOQ. See bona fide occupational qualification biases, interviewer, 2 -197 -2 -198 bidding, job, 2 - 1 5 1 , 2 - 1 5 2 blogs, and international recruitment, 2-168 Board of Education of Piscataway, Taxman v.,

2-82-2 -83 Bollinger, Gratz v., 2-83 Bollinger, Grutter v., 2-83 bona fide occupational qualification, 2 -6-2-7 , 2-

8-2-9 , 2 -86-2-87 "bottom-line concept ," 2-18 branding, employment , 2 - 1 6 2 - 2 - 1 6 4 budget analysis, 2-108 Burlington Northern Industries, Ellerth v., 2-97-

2-98 Business Visitor visas, 2-33


WORKFORCE PLANNING AND EMPLOYMENT Sectio n 2 10

c candidate profi les, 2-187 career fairs, 2-160 career sites, 2-168 City of Boca Raton, Faragher v., 2-97-2-98 City of Richmond v. J. A. Croson Company, 2-86 Civil Rights Act of 1964, Title VII, 2 -5-2-7 , 2-

1.0, 2-37, 2-96, 2-247 Civil Rights Act of 1991, 2-7-2-8, 2-37 class-action racial discrimination lawsuit against

Coca-Cola, 2-64 Cline, General Dynamics Land Systems, Inc., v.,

2-83 -2 -84 closed questions, 2-195 C O B R A (Consolidated Omnibus Budget

Reconcil iat ion Act), 2-234, 2-247 Coca-Cola, lawsuit against, 2-64 co-employment , 2-180 coercion, 2-233 cognitive ability tests, 2-200 college career fairs, 2-160 communi ty awareness, and international

recruitment, 2-168 commut ing employees, 2-122 compensatory damages, 2 -7 -2-8 competencies, job , 2-128, 2-140-2-142 competency model , 2-140 compliance evaluation, 2-76-2-79 compliance review, 2-77 compliance with aff irmative action, 2 -76-2-79 ,

2-80 concurrent validity, 2-208 confidentiali ty in employment contracts, 2-216 Congressional Accountabil i ty Act, 2-36, 2-38 Consolidated Omnibus Budget Reconciliation

Act , 2-234, 2-247 construct validity, 2 -206-2-207 constructive discharge, 2-97, 2-98-2-99, 2-232 Consumer Credit Protection Act, 2 -48-2-49 , 2-52 consumer protect ion legislation, 2 -48-2-52 content validity, 2-206 contingent j ob offers , 2 -212-2-214 contract agencies, and international recruitment,

2-168 contract, employment , 2 -215-2-219 contract workers, 2-177 contrast effect , 2-198 corporate management reviews, 2 -79-2-80

correlation, 2-207 cost of recruiting, 2 -166-2-167 cost-effectiveness of selection process, 2 -209 -2 -

210 credit history checks, 2-204. See also Fair and

Accurate Credit Transactions Act; Fair Credit Reporting Act

criminal background checks, 2-205 criterion-related validity, 2 -207-2 -209 cultural noise, 2-198

D damages, compensatory/punit ive, 2 -7 -2 -8 Davis, Washington v., 2 -62-2 -63 Davis-Bacon Act, 2-248 defenses against litigation, 2-240 Delphi technique, 2 -116 ,2 -117 demand analysis, 2-108, 2 -114-2 -118 description, job, 2-128, 2-131, 2 -135-2-139 , 2-

140, 2-148 designation of responsibility, in aff i rmat ive

action plans, 2-74 desk audit, 2-77 DeStefano, Ricci v., 2 -84-2-86 directive interview, 2-191 disability, 2 -11-2-15 , 2 -25-2-26 , 2-196 discharge

constructive, 2-97, 2 -98-2-99 , 2-232 retaliatory, 2-233

discrimination age, 2-8-2-10 , 2 -83 -2 -84 cases, 2 -60-2-64 effects of past, 2-60 enforcement guidance, 2 -58 -2 -59 exceptions to definit ion, 2 - 6 - 2 - 7 gender, 2 -94-2-101 and genetic information, 2 -15 -2 -16 recognizing, 2 -59 -2 -60 reverse, 2 -81-2 -86 types, 2 -59-2-60 wage, 2 -16-2-17

disparate impact, 2-10, 2 -18-2-20 , 2 -59-2-61 , 2-84-2-86

disparate treatment, 2-58, 2-59, 2-60, 2 -61-2-62 , 2-85

downsizing, 2 -228-2 -237 Drug-Free Workplace Act , 2-203 Duke Power, Griggs v., 2 -60-2 -61

2-272 © 2011 SHRM Printed on 30% post-consumer waste recycled paper. ®


E- l visas, 2-33 E-2 visas, 2-33 E-3 visas, 2-33 early retirement, 2-233, 2 -235-2-237 EB-1 visas, 2 - 3 1 , 2 - 3 2 EB-2 visas, 2 - 3 1 , 2 - 3 2 EB-3 visas, 2 - 3 1 , 2 - 3 2 educational institutions, and international

recruitment, 2-168 educational recruiting, 2 -159-2-160 , 2-162 EEO. See equal employment opportunity EEO-1 (Employer Information Report), 2-66, 2-

247 EEOC. See Equal Employment Opportunity

Commiss ion 80% rule, 2 -18 -2 -20 electronic application forms, 2-187 Ellerth v. Burlington Northern Industries, 2-97-

2-98 employee leasing, 2-178 Employee Polygraph Protection Act, 2 -46-2-48 ,

2-52, 2-202, 2-248 employee records management , 2 -246-2-253 employee referrals, 2-152, 2-169 Employee Retirement Income Security Act, 2-9,

2-248 employee rights legislation, 2 -4 -2 -39 employees, former, as recruitment source, 2-153,

2-161 employer defenses against litigation, 2-240 Employer Informat ion Report , 2-66, 2-247 employer liability, 2 -87-2-88 employer responses to harassment, 2 -99-2-101 employment agencies, 2-168 employment agreement , 2 -215-2 -219 employment branding, 2 -162-2-164 employment contract, 2 -215-2 -219 employment offer , 2 -214-2 -219 employment practices liability insurance, 2 - 8 7 -

2-88 employment-at-wil l , 2-215, 2-234 "Enforcement Guidance—Unlawfu l Disparate

Treatment of Workers with Caregiving Responsibi l i t ies ," 2 -58-2 -59

EPLI (employment practices liability insurance), 2 - 8 7 - 2 - 8 8

equal employment opportunity, 2 -58-2-60 , 2-167,2-189

Equal Employment Opportunity Act annual reporting form, 2 -65-2 -66 reporting requirements, 2 -64-2 -68

Equal Employment Opportunity Commiss ion, 2-6, 2 -58-2-59 , 2-94, 2-99, 2-134, 2 -180-2 -181

Equal Pay Act, 2-248 equity in selection, 2-209 ERISA (Employee Retirement Income Security

Act), 2-9, 2-248 essential job functions, 2-13, 2 -132-2-134 , 2-

213 ethnocentric approach to international business,

2-119 E-Veri fy , 2 -29-2-30 Exchange Visitor visas, 2-33 executive exception to mandatory retirement, 2-

9 Executive Order 11246, 2-20, 2 -21-2-22 , 2-38,

2-249 Executive Order 13496, 2-20, 2 -22-2-23 , 2-38 executive search firms, 2-158, 2-161 exit interviews, 2 -237-2-239 exit, organizational, 2-228 expatriates, 2-121 extended business travelers, 2-122 external recruiting sources, 2 -148-2-149 , 2 - 1 5 3 -

2-162, 2 -167-2-169

F F- l visas, 2-33 F A C T Act. See Fair and Accurate Credit

Transactions Act Fair and Accurate Credit Transactions Act, 2-

5 1 - 2 - 5 2 , 2 - 2 4 9 Fair Credit Reporting Act, 2 -49-2-52 , 2-52, 2-203 Fair Labor Standards Act, 2-250 fairness issues, 2-81-2-87 Family and Medical Leave Act, 2-250 Faragher v. City of Boca Raton, 2-97-2-98 FCRA. See Fair Credit Report ing Act federal income tax withholding, 2-251 Federal Insurance Contribution Act, 2-251 Federal Unemployment Tax Act, 2-251 first-impression error, 2-197 fitness for duty, 2-213 flexible staffing, 2 -176-2-181



floaters, 2-177 flow analysis, 2 -113-2-114 FLSA (Fair Labor Standards Act), 2-250 F M L A (Family and Medical Leave Act), 2-250 focused review, 2-77 forecasts, 2-106, 2-107

judgmenta l , 2 -115-2-117 statistical, 2 -117-2-118

Forklift Systems, Inc., Harris v., 2-96 Form 1-9, 2 -27-2-28 , 2-251 former employees, as recruitment source, 2-153,

2-161 forms, application, 2 -187-2-189 four-f i f ths rule, 2 -18-2-20 free agency, 2-178 frequent flyers, 2-122

G garnishment, 2-48 gender discrimination, 2 -94-2-101 gender identity, 2-100-2-101 General Dynamics Land Systems, Inc., v. Cline,

2-83 -2 -84 genetic information, discrimination on basis of,

2 -15 -2 -16 Genetic Informat ion Nondiscrimination Act, 2-

1 5 - 2 - 1 6 , 2 - 3 7 geocentric approach to international business, 2-

120 G I N A (Genetic Information Nondiscrimination

Act), 2 -15-2 -16 , 2-37 glass ceiling reviews, 2 -79 -2 -80 global internships, 2-168 Goodyear Tire & Rubber Co., Ledbetter v., 2-

16-2-17 government agencies, and international

recruitment, 2-168 Gratz v. Bollinger, 2-83 green cards. See immigrant visas Green, McDonnell Douglas Corp. v., 2-61-2-62 Griggs v. Duke Power, 2-60-2-61 group interviews, 2 -192-2-194 Grutter v. Bollinger, 2-83

H H - I B visas, 2-33 halo effect , 2-198

harassment, 2-5-2-6 , 2-94 cases, 2 -95-2-99 employer responses, 2 -99 -2 -100 types, 2 -94-2-95

Harris v. Forklift Systems, Inc., 2-96 HCNs (host-country nationals), 2-121 Hicks, St. Mary's Honor Center v., 2-63 honesty tests, 2-201 horn effect, 2-198 host-country nationals, 2-121 hostile environment harassment, 2-95 HR associations, and international recruitment,

2-169

H R ' s role in flexible staffing, 2 -179-2-181

f

1-9 Form, 2 -27 -2 -28 ,2 -251 identification of problem areas in af f i rmat ive

action plans, 2 -74-2-75 immigrant visas, 2 -31-2-32 Immigration Reform and Control Act, 2 -26 -2 -

30, 2-38, 2-251 inconsistency in questioning, 2-197 independent contractors, 2-176 in-depth interviews, 2 -190-2-194 inpatriates, 2-121 integrity tests, 2-201 internal recruiting, 2-148-2-149, 2-167 internal workforce planning, 2 -106-2 -107 international assignees, 2-121 international business, 2 -119-2-120 international commuters, 2-122 international job boards, 2-168 international recruiting, 2 -167-2 -169 international workers, types of, 2 -121-2 -123 international workforce planning, 2 -118-2 -123 Internet applicant, 2 -67-2-68 , 2 -156 -2 -157 Internet recruiting, 2 -154-2-157 , 2-161, 2-168 interns, 2-123 interviewer biases, 2 -197-2-198 interviews

biases of interviewer, 2 -197 -2 -198 exit, 2 -237-2-239 in j ob analysis, 2-130 questions, guidelines for, 2 -195 -2 -196 selection, 2 -190-2-198 skills/techniques, 2 -194-2 -195 types of, 2 -190-2-194



In t r acompany Transferee visas, 2 -33 intraregion recruit ing, 2 -168 invent ion covenants in emp loymen t contracts , 2-

216 involuntary terminat ions , 2 - 2 3 4 - 2 - 2 3 5 IRCA. See Immigra t ion R e f o r m and Control Act

J - l visas, 2 -33 J. A. Croson Company, City of Richmond v., 2-86 Jackson, Mississippi, Smith v., 2-10 j o b , 128 j o b analysis , 2 - 1 2 8 - 2 - 1 3 2 , 2 -148 j o b appl icant , 2 - 6 6 - 2 - 6 8 j o b appl icat ion, electronic, 2 -187 j o b bidding, 2 - 1 5 1 , 2 - 1 5 2 j o b competenc ies , 2 -128 , 2 - 1 4 0 - 2 - 1 4 2 j o b descr ip t ion , 2-128, 2-131, 2 - 1 3 5 - 2 - 1 3 9 , 2-

1 4 0 , 2 - 1 4 8

j o b func t ions , essential , 2-13, 2 - 1 3 2 - 2 - 1 3 4 j o b g roup analysis , 2 - 7 1 - 2 - 7 2 j o b of fe r , cont ingent , 2 - 2 1 2 - 2 - 2 1 4 j o b post ing, 2 - 1 4 9 - 2 - 1 5 1 , 2 - 1 5 2 j o b speci f ica t ions , 2-128, 2-131, 2 - 1 3 9 - 2 - 1 4 0 ,

2 -148 Jobs for Ve te rans Act, 2-20, 2 - 2 1 - 2 - 2 2 , 2 - 2 4 - 2 -

2 5 , 2 - 3 8 Johnson v. Santa Clara County Transportation

Agency, 2-82 jo in t e m p l o y m e n t , 2 -180 j u d g m e n t a l forecasts , 2 - 1 1 5 - 2 - 1 1 7 J V A . See Jobs for Vete rans Act Kolstad v. American Dental Association, 2 - 7 - 2 -

8 K S A s (knowledge , skills, abili t ies), 2 - 1 2 9

L L - l visas, 2 -33 labor un ions , as recrui tment source, 2 -154 , 2-

161 layof fs , 2 - 3 4 - 2 - 3 6 , 2 - 2 2 8 - 2 - 2 3 2 . See also

involuntary terminat ions Ledbetter v. Goodyear Tire & Rubber Co., 2-

1 6 - 2 - 1 7 legal issues

and emp loyee records , 2 -253 wi th f lexib le s taf f ing , 2 - 1 8 0 - 2 - 1 8 1

legislation consumer protect ion, 2 - 4 8 - 2 - 5 2 employee rights, 2 - 4 - 2 - 3 9 local, 2 - 3 8 - 2 - 3 9 , 2-53 pr ivacy, 2 -46 -2 -48 , 2 -52 state, 2 - 3 8 - 2 - 3 9 , 2-53

Leonel v. American Airlines, 2 - 2 1 2 - 2 - 2 1 3 liability

employer , 2 - 8 7 - 2 - 8 8 vicarious, 2 -98

lie detector tests. See po lygraph tests Lilly Ledbet ter Fair Pay Act , 2 - 1 6 - 2 - 1 7 , 2-37 litigation, employe r defenses against , 2 -240 local hires, 2 -122 local legislation, 2 -38 -2 -39 , 2 -53 local nat ionals , 2-121, 2-122 localized employees , 2 -122 log, in j o b analysis, 2-131 long-term assignees, 2-122

M

managed services, 2-178 manager ia l est imates, 2 -115 manda to ry ret irement, execut ive except ion to, 2-

9 McDonnell Douglas Corp. v. Green, 2 - 6 1 - 2 - 6 2 McKennon v. Nashville Banner Publishing Co.,

2 - 6 3 - 2 - 6 4 media adver t is ing for recruit ing, 2 - 1 5 8 - 2 - 1 5 9 ,

2-162,2-168 medica l examinat ions , 2 - 2 1 3 - 2 - 2 1 4 meri t hir ing vs. quota hir ing, 2 -86 Meritor Savings Bank v. Vinson, 2-95 minor i ty recrui t ing, 2 -160 , 2 - 1 6 2 Moody, Albemarle Paper v., 2-62 motor vehic le record checks , 2 -204 mul t ip le l inear regression, 2 -118

N Nashville Banner Publishing Co., McKennon v.,

2 - 6 3 - 2 - 6 4 needs analysis , 2-107, 2 -108 negat ive emphas is , 2 -197 nomina l g roup technique, 2 - 1 1 6 noncompe te covenants in e m p l o y m e n t contracts ,

2 -217 nondi rec t ive interview, 2 -191


WORKFORCE PLANNING AND EMPLOYMENT Sectio n 2-10

nondisclosure terms in employment contracts, 2-216

nonimmigrant visas, 2-31, 2-33 nonpiracy covenants in employment contracts,

2-216 nontraditional labor pools, 2-161, 2-162, 2-178 nonverbal behavior, 2-194 nonverbal bias, 2-198 North American Free Trade Agreement

(NAFTA) visas, 2-33 notification of applicant, 2-190

o O visas, 2-33 observation, in j ob analysis, 2-130 Occupat ional Safety and Health Act, 2-251 OFCCP. See Off ice of Federal Contract

Compliance Programs offer letter, 2-214 Off ice of Federal Contract Compliance

Programs, 2-21, 2-23, 2-67, 2-71, 2-76, 2-77, 2 - 7 9 , 2 - 1 5 6

Off ice of Labor-Management Standards, 2-23 off-si te review, 2-77 Older Worke r ' s Benefi t Protection Act, 2-236 O L M S (Off ice of Labor-Management

Standards), 2-23 Oncale v. Sundowner Offshore Service, Inc., 2-

96 on-call workers , 2-177 0 * N E T , 2-138 online j ob boards, 2-156 online social networks, and international

recruitment, 2-168 open questions, 2-195 organization unit, 2-69 organizational display, 2-70 organizational exit, 2-228 organizational profi le, 2-69-2-71 O S H A (Occupational Safety and Health Act), 2-

251 outplacement, 2-158, 2-161, 2-168, 2 -239-2 -

240 outsourced employees, 2-123 outsourcing, 2-178 O W B P A (Older Worker ' s Benefit Protection

Act), 2-236

P panel interview, 2-193 parent-country nationals, 2-121 part-time employees, 2-35, 2-123, 2-177 patterned interview, 2-191 payrolling, 2-178 PCNs (parent-country nationals), 2-121 Pennsylvania State Police v. Suders, 2-98-2-99 PEO (professional employer organization), 2-

178 PERM (Program Electronic Review

Management), 2-34 permanent assignees, 2-122 permanent labor certification, 2-34 personal networking, and international

recruitment, 2-168 personality tests, 2-200 placement goals in aff i rmative action plan, 2-

73-2-74 polycentric approach to international business,

2-119 polygraph tests, 2 -46-2-48 , 2-202, 2-248 posting, job, 2 -149-2-151 , 2-152 pre-adverse action and consumer reports, 2-50 predictive validity, 2 -208-2 -209 preemployment tests, 2 -198-2 -201 Pregnancy Discrimination Act, 2-5, 2 -10-2-11 ,

2-37 prescreening

interview, 2-190 phone call, 2-189

present effects of past discrimination, 2-60 previous applicants, as recruitment source, 2-

153,2-161 prima facie, 2-62 Privacy Act, 2-46, 2-52 privacy legislation, 2 -46-2-48 , 2-52 private employment agencies, 2-158, 2-161 professional associations, as recruitment source,

2-154, 2 -161 ,2 -169 professional employer organization, 2-178 Program Electronic Review Management , 2-

34 protected classes, 2 -58-2 -59 psychomotor tests, 2 -200-2 -201 public employment agencies, 2-157, 2-161 punitive damages, 2 -7 -2 -8



Q visas, 2-33 qualif ied medical examinations, 2 -213-2 -214 questionnaire, in job analysis, 2 -130-2-131 questions, guidelines for, 2 -195-2-196 quid pro quo harassment, 2-95 quota hiring vs. merit hiring, 2-86 ratio analysis, 2-110, 2-111 realistic j o b previews, 2-210-2-212 reasonable accommodat ion, 2 -13-2-15 , 2-25, 2-

26 "reasonable person" standard, 2-96 records management , 2 -246-2-253 recruitment, 2-148

cost, 2 -166-2 -167 effect iveness, 2 -164-2-167 external, 2 -148-2-149 , 2 -153-2-162 , 2 - 1 6 7 -

2-169 internal, 2 -148 -2 -149 ,2 -167 international, 2 -167-2-169 intraregion, 2-168 objectives, 2-148

reductions in force, 2 -228-2-232 reference checks, 2 -203-2-204 referrals, 2-152, 2-169 reflective listening, 2-194 Regents of the University of California v. Bakke,

2-81 regiocentric approach to international business,

2-120 regression analysis, 2 -117-2-118 Rehabili tation Act, 2-20, 2-21-2-22 , 2 -25-2-26 ,

2-38, 2-252 reliability, 2-205 relocation considerations, 2-217 repatriates, 2-121 repetitive interview, 2-191 report ing requirements, EEO, 2 -64 -2 -68 resignations, 2-235 resumes, 2-188 retaliatory discharge, 2-233 retention, 2 -219-2-221 retirees, 2-123 ret irement, 2-233, 2 -235-2-237 returnees, 2-123 reverse discrimination, 2 -81-2-86 Ricci v. DeStefano, 2-84-2-86 RIFs (reductions in force), 2 -228-2 -232

RJPs (realistic job previews), 2 -210-2-212 rotational employees, 2-122

s Santa Clara County Transportation Agency,

Johnson v., 2-82 School Board of Nassau v. Arline, 2-26 school-to-work programs, 2-160, 2-162 SCRR (Standard Compliance Review Report),

2-78 seasonal workers, 2-177 selection, 2-186

application forms, analyzing, 2 -187-2-189 background checks, 2 -203-2-205 employment offers , 2 -214-2 -219 interviews, 2 -190-2-198 job offers, contingent, 2 -212-2-214 tests, 2 -198-2-203, 2 -205-2-210

seniority systems, 2-7, 2-9, 2-11, 2 -228-2-229 sequential employees, 2-122 Service Contract Act, 2-248 severance packages, 2-218, 2-229-2-230, 2-236 sexual harassment. See harassment sexual orientation, 2 -100-2-101 short-term assignees, 2-122 similar-to-me error, 2-198 simple linear regression, 2 -117-2-118 simulations, 2-118 situational interview, 2-192 skill banks/tracking systems, 2-151, 2-152 Smith v. Jackson, Mississippi, 2-10 Specialty Occupat ion Worker visas, 2-33 specifications, job, 2-128, 2-131, 2 -139-2-140 ,

2-148

St. Mary's Honor Center v. Hicks, 2-63 staffing, 2-106, 2 -176-2-181 Standard Compliance Review Report, 2-78 state

employment agencies, 2-157, 2-161 legislation, 2 -38-2-39 , 2-53

statistical forecasts, 2 -117-2 -118 stealth expats/assignees, 2-122 stereotyping, 2-197 strategic analysis, 2-108 stress interview, 2-191 structured interview, 2-191 Student visas, 2-33 substance abuse tests, 2 -202-2-203


WORKFORCE PLANNING AND EMPLOYMENT Sectio n 2-10

Suders, Pennsylvania State Police v., 2-98-2-99 Sundowner Offshore Service, Inc., v. Oncale, 2-

96 supply analysis, 2-107, 2-108, 2 -109-2-114

T targeted application forms, 2-187 targeted interview, 2-191 Taxman v. Board of Education of Piscataway, 2-

82-2 -83 TCNs (third-country nationals), 2-121 team interview, 2-193 temporary agencies, 2-157, 2-161, 2-169 temporary assignments, 2-177 temporary employees, 2-123, 2-157, 2-161, 2-

169, 2-177 temporary help, finite, 2-177 temp-to-hire employees, 2-123 temp-to-hire programs, 2-177 temp-to-lease programs, 2-178 termination, 2-217, 2 -232-2-237 tests

preemployment , 2 -198-2-201 selection, 2-198-2-203, 2 -205-2-210

third-country nationals, 2-121 third-party sources for recruiting, 2 -157-2-158 ,

2-161 Title VII. See Civil Rights Act of 1964, Title VII TN visas, 2-33 trade associations, as recruitment source, 2-154,

2 -161 ,2 -169 trainees, 2-123 Treaty Investor and Trader visas, 2-33 trend analysis, 2-110-2-111 turnover, 2-112, 2-220-2-221 turnover analysis, 2 -112-2-113

U,v undue hardship, 2-14, 2-25 Uniform Guidelines on Employee Selection

Procedures, 2-17-2-20, 2-37, 2-68, 2-199, 2-252

Uniformed Services Employment and Reemployment Rights Act, 2-36, 2-38, 2-196

unions, as recruitment source, 2-154, 2-161

United Steelworkers v. Weber, 2-81-2-82 USCIS (U.S. Citizenship and Immigration

Services), 2 -26-2-27 U.S. Citizenship and Immigration Services, 2-

26 -2 -27 USERRA. See Uniformed Services Employment

and Reemployment Rights Act validity, 2 -205-2-209 V E V R A A . See Vietnam Era Veterans

Readjustment Assistance Act vicarious liability, 2-98 Vietnam Era Veterans Readjustment Assistance

Act, 2-20, 2-21-2-22, 2-24-2-25, 2-38, 2-252 Vinson, Meritor Savings Bank v., 2-95 virtual employees, 2-123 visas, 2 -30-2-34 voluntary compliance with affirmative action, 2-

80 voluntary resignation, 2-235 voluntary retirement, 2-233, 2 -235-2-237 voluntary terminations, 2 -235-2-237

W, X, Y, Z wage discrimination, 2 -16-2-17 walk-ins, as recruitment source, 2-154, 2-161 Walsh-Healey Act, 2-248 W A R N . See Worker Adjustment and Retraining

Notification Act Washington v. Davis, 2-62-2-63 W e b sites, corporate, 2-164 Weber, United Steelworkers v., 2-81-2-82 weighted application forms, 2 -187-2-188 work diary/log, in job analysis, 2-131 work made for hire, 2-216 work reference checks, 2 -203-2-204 Worker Adjustment and Retraining Notification

Act, 2 -34-2-36 , 2-38 workers, international, types of, 2 -121-2-123 workforce analysis, 2 -70-2 -71 workforce planning

internal, 2 -106-2-107 international, 2 -118-2-123

work-related requirements, 2-6 wrongful terminations, 2 -232-2-233 yield ratios, 2 - 1 6 5 , 2 - 1 6 6 - 2 - 1 6 7


Module 2 Checklist

Section

2-1: Key Legislation Affecting Employee Rights

Start Date

Completion Date

2-2: Key Legislation Affecting Privacy and Consumer Protection

2-3: Equal Employment Opportunity/Affirmative Action

2-4: Gender Discrimination and Harassment in the Workplace

2-5: Organizational Staffing Requirements

2-6 Job Analysis and Documentation

2-7 Recruitment

2-8 Flexible Staffing

2-9 Selection and Retention

2-10: Organizational Exit

2-11: Employee Records Management

Score for Module Review Test One* Score for Module Review Test Two*

* Look for these tests on the Web at www.learnhrm.com.

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