SLIDESHOW: The 5 Hiring Biases Most Managers Display - And They're All Legal...

It's official - your hiring managers are the worst you've ever seen.  Full of bias, they make hiring decisions for all the wrong reasons.

Don't believe me? Methinks you've just settled into complacency, then.  You've got your big protected classes that are covered by Title 7, then you've got all the polluted biases your managers bring the table that aren't covered by anything.

Check out the slide below from a webinar Tim Sackett and I did a year or so ago.

I posted yesterday about CEOs of startups hiring young, blonde females for HR leadership roles.  It wasn't my ideal, but I had enough email coming back at me that I wanted to share the slides below again.  Whether it's attractiveness, height, weight, alma matter or likeability, bias (and legal bias at that) is in play at your company.

The real question - do attractive, tall, thin, likeable people really get more done because of those factors, or do they represent hiring misses when the knowledge, skills and abilities aren't there to back those factors up?

The answer to that question is more complex than most of us would like to believe.

(email subscribers click through for slideshow)


Our New Employee Handbook: THE KINETIX CODE...

My last post was a link to "The CYA Report", my podcast where I usually bring in my trusted friend and resident HR ****-stirrer Tim Sackett to help me wax poetic about an issue of note and interview someone from the wide world of HR.  Good times.

On the last podcast, we interviewed Tom O’Dea, co-founder of Rocket Whale and the employee handbook platform called Blissbook.  

If you want to see the latest version of our employee handbook at Kinetix, click on this link to see the handbook we call "The Kinetix Code".  It's an interesting take and while I wrote a good bit of the copy, we had a pretty good team of 3-4 people at Kinetix that really drove the look and the feel of the project.  I think they did a great job.

Click here to see "The Kinetix Code"... (picture appears below, but it doesn't do it justice since the handbook is interactive in nature)

Screen Shot 2013-12-16 at 12.47.44 PM


The Common Sense Solution to Unpaid Internships...

So common sense it will never happen, mind you.

Cue the big budget movie voice-over voice: "In a world where the FLSA has deemed that the only unpaid internship that can exist is one where the intern in question can't actually be exposed to real work, a challenge has risen in the Southeast..."

Here's your common sense solution to unpaid internships.  Rather than write bad guidance (only Interns internships that don't include real work can be unpaid) and keep people guessing on whether they're going to get sued or not, write into law the following regulations on interns, which are pro-business and pro labor:

1. There will be such a thing as unpaid internships.

2. Create a classification similar to non-exempt and exempt for interns.

3. Create a schedule based on company size (either revenue or number of employees) that shows exactly how many unpaid internships a company can have.  Example - a company can have 1 unpaid internship a year lasting for 12 weeks for every 500 employees in the company.  Make the number less than the estimated number of unpaid internships that go on now, but still pro-business.

4. Establish a hefty fine that will be charged to a company for every unpaid internship uncovered beyond what is legally allowed - something like 20K.

5. End crazy ### language that says a company can have unpaid internships as long as they don't perform real work, which is the type of guidance you get when you don't solve the problem.  The only unpaid internships that can exist fall under the guidance above - no other exceptions.

5. Let all the other labor law guide everything else from an employment perspective.

Want to know why that would work?  Because you are legally defining what's acceptable from an unpaid internship perspective, and you're allowing the unpaid interns who fall under this guidance to actually do real work and get real benefit from it.  You're also protecting the labor side by attempting to close loopholes that create gray areas that don't make sense.

Let's make a certain number of unpaid internships legal and attractive.  Watch the competition for these spots if you went this route - it would be unbelievable, and it's actually something the government could do that would be incredibly career-development focused.

Imagine if you allowed every small business to have a 12 week internship that provided real work experience to college grads or people looking for experience in an industry.  

Why are we bullsh**ing about unpaid internships by talking vaguely about the type of work they can do?  Let's just limit the number that can exist and make it totally visible.


Chivas USA: When Your HR Manager Sues For Discrimination, You Might Want to Strap In...

When your HR Manager files discrimination charges after credible employees do, you know:

1. There was probably some validity to the orginal charges, 

2. You likely have a renegade executive doing whatever the hell they want, and 

3. FYI: You are hosed. H-O-S-E-D, I say.

Backstory- Chivas USA is a major league soccer franchise located in Los Angeles.  You've heard of the LA Galaxy with Beckham, right?  Chivas USA is in the same league.  They play in LA too.

Jorge Vergara, a former part owner, gained full control of the team in November 2012 and allegedly began harassing non-Latino employees. Vergara also owns a Mexican team called Chivas de Guadalajara, which is famous in part because it will not sign non-Mexican players.  The recent charges and a bunch of other coverage claims he wanted to bring his 100% Mexican playbook to Chivas USA, including youth feeder programs in addition to the professional club.  

Problem is, Chivas USA is located in...well, the USA.  Thus the name.  So a policy including 100% Mexican players is a bit of a problem.  

First, 2 coaches filed discrimination charges.  Read something I did over at Fistful of Talent for that rundown.  Ugly.

Then, the HR Manager files similar charges.  Oops. Ugly times 2.  More from the Daily Breeze with a h/t to Deadspin

"The suit charges that, starting in January, Chivas hired four coaches from Mexico even though they were not authorized to work in the United States. According to the suit, HR Manager Cynthia Craig was told to add the coaches to the payroll but she refused, and team executives instead routed them money through other means. (The complaint states the coaches received visas in April.)

Craig, who is black, said in court papers that she was harassed by team owner Jorge Vergara and team President Jose David because she was not Latino and could not speak Spanish. Craig left the team in July after a period of prolonged harassment, the complaint states.

Her suit also charges that, starting in January, Chivas hired four coaches from Mexico even though they were not authorized to work in the United States. According to the suit, Craig was told to add the coaches to the payroll but she refused, and team executives instead routed them money through other means. (The complaint states the coaches received visas in April.)

In her suit, Craig said Vergara began one of his first staff meetings speaking in Spanish and then said, in English, “If you didn’t understand what I just said, then it is time for you to get a job down the hall.” (Chivas shares the StubHub Center in Carson with the Los Angeles Galaxy, another professional soccer team.)"

When the HR Leader is filing charges against you, you probably need to put on your helmet and seatbelt.


Is Negative Recruiting Against Companies with a High Percentage of Gay Associates In Our Future?

There's obviously lots of movement in our society toward workplace equality for LGBT individuals, and this post isn't meant to be a debate on whether you agree or disagree with that.  With so much activity pointing to the fact that equality is going to be legally defined to a greater extent soon, this post is simply about one aspect of what might be coming with that future.

One fallout you might see from the change: Negative recruiting against companies/departments/teams/managers that are open LGBT-friendly may occur at the street-level of talent acquisition. Geno kim 

Why in the hell is this on my mind?  I recently saw a piece by ESPN's new ombudsman that led me to an old article from ESPN The Magazine talking about homophobia in women's sports.  Here's a taste:

"On every top recruit's college visit, there comes the moment of the final pitch, when the head-spinning hoopla finally gives way to the business of basketball, when the high school girl steps away from the rah-rah of all the games and the ego-stroking of all the VIP intros to sit down with the head coach. During one teen's big moment, a heart-to-heart with Iowa State's Bill Fennelly, the decorated coach of 23 years sang an insistent refrain. "He kept drilling that 'this would be a family,'" says the player, who asked not to be named. "'You should come here,' he said, 'because we're family-oriented.'"

To the recruit, those seemingly comforting words cloaked a deeper meaning. Two of the four schools she was considering were purported to employ lesbians on their staffs. Her stop in Ames, in fact, was on the heels of a trip to one of those allegedly "gay programs." There, coaches avoided discussing anyone's off-court lives. Iowa State, in contrast, pushed the personal hard. "They threw it out constantly," says the player, who became a Cyclone. "'Iowa has morals, and people who live here have values, wholesome values.'" The implication, to her and to another former Cyclone who confirmed her account, was that at other schools, "there's something going on you don't know."

Now before you go bashing Iowa as a whole, you should know that the state usually shows up on the LGBT-friendly chart related to equality legislation, so it's more about the program and less about the state.  But that illustrates a long term trend of negative recruiting on LGBT issues in women's college sports:

"Why, exactly, depends on whom you ask. Gay rights activists, coaches and players speak at length about what they see as a longtime and underhanded recruiting tactic in women's sports: Pitches emphasizing a program's family environment and implicit heterosexuality are often part of a consciously negative campaign targeted at another program's perceived sexual slant. In a survey of more than 50 current and former college players, as part of The Magazine's seven-month look at women's basketball recruiting, 55 percent answered "true" when asked if sexual orientation is an underlying topic of conversation with college recruiters."

You should go read the entire article, because it's pretty alarming and insightful at the same time.  The article goes on to talk about multiple situations, even going on to identify the reason two of women's basketball biggest programs (UConn and Tennessee) don't play each other is because one (UConn) deployed negative recruiting, accusing the other (Tennessee) of being a safe haven for lesbians.  

So back to the future. One reason negative recruiting on LGBT issues in corporate America won't happen is that as society finds acceptance to a greater degree, fewer people will care, and more will accept the concept indiviually.

But thinking there won't be a backlash of negative recruiting is probably idealistic at best.  After all, those that are fervently anti-gay have never really been faced with a society that openly accepted LGBT issues.  As that acceptance grows, you can expect those who are anti-LGBT equality to activate to a greater degree, and deploy negative recruiting behind the scenes - with coversations like the one outlined above as the low-risk, high impact way to engage.

I don't see negative recruiting in play at the enterprise/company level.  I do see it coming into play on a position by position, hiring manager by hiring manager basis as LGBTacceptance grows, and with Freedom of Religion as the backdrop, I can almost guarentee you that you'll see it in LGBT discrimination case defense strategies.  You can already see it, right?  

"I told the recruit that we have a family-oriented team and obviously we want someone who fits that."

Then, the defense wonders aloud why the defendant in question doens't have the right to talk about his religous beliefs?

Negative recruiting around LGBT issues - coming to a Supreme Court decision near you in 2020.


YOU MAKE THE CALL: Are You Responsible For Knowing That This Executive Hire Was About to File Bankruptcy?

Let's say you're leading a CEO Search for a company that does $48 Million in Revenue and prints $24 Million in Net Income annually.  Are you responsible for knowing the hire you made was in financial trouble?

Is that your responsibility?  Is that your business?  Would the Board of Directors expect that level of vetting?

A company recently missed along these lines, getting surprised by their CEO filing for bankruptcy just months after he was hired.  Whether you agree with it or not, I'm thinking there's no way the company makes the hire if they knew their candidate was carrying such heavy financial woes.  Here's the details of the CEO's situation, which are public record:

"_____ recently filed for Chapter 7 bankruptcy, and documents filed today in federal court show that he has only some $1.2 million in assets, compared to more than $25 million in liabilities. He's making $850,000 as part of his 10-month contract to _____, so it would appear ______has quite a long-term problem here.

He has just $300 in cash on hand and $500 in his checking account, the bankruptcy documents show.

_____ estimates the only real property he owns as worth $2,000 from a "1/4 interest in deceased parents real estate — 8 acres in Iona, Idaho worth $8,000.00 (total).

The latest court filing shows the extent of those difficulties. The biggest claim against him is $20 million from Terra Springs LLC, in Louisville. Republic Bank and King Southern Bank in Louisville claim $2 million and $902,000 respectively. American Express is claiming $10,810.

Chapter 7 bankruptcy is used to liquidate debts. Among the other assets ____ lists are: $5,000 in home furnishings, $2,500 in memorabilia rings and watches, $900 in books and pictures, $950 in clothing and accessories and $200 in golf clubs and a shotgun."

Hit me in the comments and tell me two things:  1) Was it the lead HR exec's responsibility to know this data about the candidate, and if they knew, should they have made the hire?

PS - the CEO in question is embattled Arkansas football coach John L Smith.  Click here for details.


Here's What an Anti-Employee Poaching Legal Letter Looks Like.. (With No Visible Case Behind It)

You know I'll rip something from the headlines anytime it makes sense.  Here's an anti-employee poaching from Groupon (daily deals provider) to a firm called Top Hat Monocle.  The jist of the argument here seems to be "you've recruited our Groupon salespeople, and now you're using our former Salespeople to poach more Groupon employees to your company."

Note the industry is non-competitive, so the non-compete doesn't apply, and they're not saying that.  They're saying that you hired Susie, and then you engaged Susie to call 5 of her friends at Groupon to join her at Top Hat.

Easy to say, hard to prove.  What's Groupon after here?  They'd like Top Hat to blink and stop hiring Groupon salespeople for awhile.  If you think non-competes are hard to enforce, try a non-solicitation.  Hard to prove.  Top Hat has a couple of choices based on the letter below:

1.  They can stop recruiting Groupon employees cold.  This is what Groupon wants.

2.  They can tell the Groupon employees they've hired that anyone interested in a job at Top Hat needs to apply directly.  Once they've applied, Top Hat is more free legally to have conversations with the former Groupon employees they've hired about the other Groupon folks who have applied, including asking them to help interview, follow up, etc.  "How did you learn about this opportunity?" is the key question here...

3.  They can keep doing what they're doing, which may be what Groupon suspects or it may be closer to what I described in #2.

What would you do?  Enjoy the legal eagle-ing.

Groupon's Letter to Top Hat Monocle


BIZZARO: The Obama Administration's NLRB Gives "Guidance" on Social Media Policy...

Wow.

That's all you can say.  Download the NLRB's recent guidance to it's Regional Directors on Social Media here

You can judge it overall on your own.  I'll give you one highlight (hat tip to Dan Schwartz) that shows how clueless appointees are to how things work in the real world.  Read it and weep:

"Sample Social Media policy cited: Use technology appropriately* * * * *If you enjoy blogging or using online social networking sites such as Facebook and YouTube, (otherwise known as Consumer Generated Media, or CGM) please note that there are guidelines to follow if you plan to mention [Employer] or your employment with [Employer] in these online vehicles. . . Don’t release confidential guest, team member or company information. . . .

What the NLRB said:  We found this section of the handbook to be unlawful.  Its instruction that employees not “release confidential guest, team member or company information” would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves--activities that are clearly protected by Section 7."

And you wonder why production of all types is going offshore.  So, you're telling me that you would strike down as illegal any language that says confidential information can't be shared because of your view on conditions of employment?  Without attempting to clarify and parse further?

Right.  You have no clue on how companies actually work.  It's the kind of thing that makes a business-focused moderate like me decide that the Libertarian path doesn't look so bad.  


WINNER TAKES ALL: Supreme Court to Determine if Pharma Reps Should Be Classified as "Exempt"...

They call it the Supreme Court for a reason, right?  It's supreme.  It's the "decider".

And the Supreme Court has one coming up that all of you should be interested in.  It's deciding whether Love-and-Other-Drugs pharma reps - those well dressed, good looking professionals who come in the doctor's office peddling their wares when you are there looking haggered, sick and generally untouchable - should be classified as exempt, or whether they in fact deserve overtime pay.

More on what's being decided in the case from the US Supreme Courts' blog (they've got a pretty good one):

"On April 16, the Court will hear arguments in Christopher v. SmithKline Beecham Corp. The Justices will decide, once and for all, whether pharmaceutical sales representatives (PSRs) are “outside salesmen” and thus exempted from overtime-pay requirements of the Fair Labor Standards Act of 1938 (FLSA) The decision will also settle a circuit split between the Second and Ninth Circuits:  the former held that PSRs are not outside salesmen and thus are not exempted from the FLSA’s requirement that they be paid overtime wages, while the Ninth Circuit (in this case) unanimously reached the contrary conclusion. This will be an interesting case with wide-ranging ramifications for the pharmaceutical industry and the ninety thousand people nationwide employed as PSRs."

More on the work duties and who the pharma reps are selling to:

"To understand the typical duties of a PSR, it is necessary to understand the concept of an “ultimate user” in pharmaceutical lingo. An “ultimate user” is the patient who actually takes the prescribed medicine. Under the Controlled Substances Act of 1970, no one, including drug manufacturers, can dispense prescription medicine without a physician’s authorization. Because the drug manufacturers cannot sell their prescription medications directly to the public, they sell the medications to distributors or retail pharmacies, who then dispense the medications to an “ultimate user” who presents a proper physician’s authorization.

Within this framework, Glaxo employs PSRs to make calls on physicians. At a call, the PSRs will typically present information and samples to the physician and attempt to convince the physician to prescribe their employer’s pharmaceuticals instead of the competition’s.

PSRs work almost entirely outside of Glaxo’s offices. Most of a PSR’s time is spent traveling to physicians’ offices within a specified geographic region. A PSR will ordinarily make eight to ten physician calls per day, usually between 8:30 a.m. and 5:00 p.m.  When not making physician calls, PSRs will study Glaxo products and relevant disease states. They will prepare new presentation modules, respond to phone calls and e-mails, generate reports, and attend evening and weekend seminars. These tasks are typically performed outside of customary business hours.

Of critical importance to this case is the fact that PSRs cannot sell samples, take orders for any medications, or negotiate drug prices or contracts with physicians or users. Instead, they can only try to convince physicians to prescribe Glaxo products instead of its competitors’ products."

Now, what the court is trying to decide:

"There are two issues before the Court.  The first is whether it owes deference to the Department of Labor’s interpretation of its regulations. The second is whether PSRs are outside salesmen when they cannot legally sell prescription drugs, but instead can only encourage physicians to prescribe their employer’s drugs.

In both the Second Circuit and this case, the Secretary of Labor filed an amicusbrief in support of the PSRs. However, the courts in each of those cases split on whether the Secretary’s interpretation of the Department’s regulations warranted deference:  the Second Circuit held that it did, while the Ninth Circuit held that it did not."

Interesting stuff.  Here's how they are currently comped according to the details on the USSC blog:

"For their services, PSRs receive two types of payment: salary and incentive-based compensation. Glaxo aims to have its PSRs receive seventy-five percent of their payment as salary and twenty-five percent as incentive-based compensation. However, the amount of incentive-based compensation a PSR can receive is unlimited. In general, a PSR’s incentive-based compensation is calculated by measuring the increase of Glaxo’s market share for a particular drug within the PSR’s territory."

For a deeper dive on what pharma reps make, see this breakdown over at Recruitingblogs.com. Basically, pharma rep comp differs by company (makes sense - what primary product lines are they selling), but a good rule of thumb is salary of 60-70K and total comp of 90-110K.

Sound like an hourly job to you?   I'm also wondering aloud if the objection is that they aren't true outside sales professionals, they're still marketing professionals who have discretion about when/where/how they do their jobs, right?  The world has gone insane.  Pharma reps who make 100K are now before the Supreme Court with a 50/50 shot at getting overtime.

If that's the case and the court decides in favor of the reps, then if I'm a comp professional, I'm turning the model upside down.  Incentive pay goes away (and along with it, the ability to double your base) and I'm paying an hourly rate that factors in OT and reduces total comp to 85-90% of what I'm currently paying.

You know - just good enough to keep the talent in the job - but there's no way if the pharma industry loses the case that they're simply going to increase their talent comp structure by 15-20%.

And that, my friends, is what people who file and drive these cases don't understand.  The attorneys win again, and 90,000 pharma reps end up with a decreased ability to earn.  Nice.


We Know You Don't Mean to Discriminate - But Are You Biased Underneath the Hood?

Here's an interesting concept related to the law on unintended consequences in HR.  Let's say you've done all the awareness training about discrimination of all forms.  Your company is doing better about overt forms of discrimination, everyone's playing the game and dotting the i's and crossing the t's.

But you still think there are ways for everyone to grow in this area.  You still think that people aren't aware Hate-me-large-600x320 of all the ways they discriminate in a subconscious fashion.  The whole "going with my gut" thing is something you'd like to explore, because you think there's still something nasty under the hood.

So you want to dig deeper to make people aware of what they aren't aware of related to themselves.

There are a couple of ways you could do that.  You could have them take some tests on implicit bias, and maybe you could even set up a little test.

Interested?  Here's more on the concept of testing unintentional bias (also known as implicit bias) from UVA professor Erika James over at the Washington Post:

"The big idea: Invest Co, a leading investment bank with operations worldwide, was concerned that it might be losing ground in the war for talent. Was bias in the talent-management decision-making processes to blame for the limited representation of women and minorities in senior leadership positions?

The scenario: In an industry where women and minorities have traditionally struggled to break in to the senior leadership, Invest Co, like other Wall Street firms in recent years, was on the heels of a discrimination lawsuit that cost the firm tens of millions of dollars in settlement fees. Questioning whether Invest Co engaged in intentional discrimination toward women and minorities, senior members of the human resources team wondered whether a culture of unconscious, yet biased, decision-making was contributing to a lack of diversity that was affecting the firm’s ability to attract, retain and promote the best talent.

To test this theory, the HR team designed an exercise for senior leaders in which they created profiles of candidates for promotion to managing director. The profiles included public-knowledge biographical information, career data (including 360 degree feedback assessments) and numerical performance ratings in four key metrics (ability to meet strategic goals, professional skills, leadership skills and team skills). Although the candidates had different strengths and weaknesses across these dimensions, the value of their total score was the same. Each profile concluded with commentary by the candidate’s managers and their recommendations for promotion. Demographic information such as race and age was not included."

Here's where I get nervous.  I think exercises like this are pretty interesting, but the big question is this as an HR Leader:

Are you creating more liability for your company by testing or conducting awareness campaigns for implicit bias than you would by doing nothing?

Let's say you run some tests or awareness exercises like the above and the results are clear - your managers are full of bias that they're not even fully aware of.   

You think the EEOC or any legal proceeding you're in related to bias/discrimination is going to give you a pass on that?  The answer, I think, is no.  Those tests/exercises would be fully discoverable and for that reason, you'd have to think long and hard before conducting/sponsoring any type of self-discovery beyond the standard training you do related to selection.

It's progressive as hell to think about these deeper issues, and you'd love to help good people understand things that are buried deep inside.  

But you can't do that in your role as an HR leader - too much risk for the enterprise.