SALES & MARKETING MANAGER, Page 21 Tag

One government agency has just taken the wraps off a new way its officials intend to enforce employment laws. If this tactic spreads, it could be very costly for employers. 

New York City employers are now faced with the possibility of having government officials poking around their hiring practices disguised as job applicants.

Mayor Bill de Blasio (D) just enacted a new law (Bill 690-A) that requires the city’s Human Rights Commission to conducted “matched-pair” testing of at least five employers’ hiring processes between Oct. 1, 2015 and Sept. 30, 2016 — although there’s no limit to how many of these tests the commission can conduct.

The “matched-pair” testing will work like this: The commission will have two “testers” apply for, or inquire about, the same position at the same company. The testers will have similar qualification, but the major difference will be that one will have a characteristic protected by the city’s Human Rights Law.

The protected characteristic may be, among other things, the person’s:

• race
• color
• creed
• age
• national origin
• alienage or citizenship status
• gender/gender identity
• sexual orientation
• disability
• marital status
• partnership status
• criminal history
• unemployment status, and/or
• status as a victim of domestic violence, stalking or sex offenses.

The testers will be required to report any incidents of discrimination to the commission’s Law Enforcement Bureau.

More aggressive approach

While it’s not uncommon for government enforcement agencies like New York City’s Human Rights Commission to use investigators, their primary duties up until now have been to investigate complaints filed by aggrieved individuals.

This new action marks one of the first times an agency will actively seek out discrimination on its own, and this massive shift in mindset should have employers worried.

These investigations will be conducted without provocation or warning, and if they turn up significant employment law violations, you can bet this is a model that will be adopted by other government agencies across the U.S..

Caroline Berdzik, an attorney who chairs the employment and healthcare practice at Goldberg Segalla, told Crain’s New York Business, “This agency is supposed to enforce discrimination law, not create new actions. … This is going to open a whole can of worms.”

Other law firms, like Jackson Lewis P.C., are saying that while employers should obviously be doing everything they can to prevent discrimination in hiring and employment actions already, they must how approach every applicant as if he or she’s one of the investigators.

We could write tens of thousands of words on how the job interview process has changed since the dawn of employment. Instead, here’s what the evolution looked like. 

Video interview software maker Spark Hire’s created the following witty infographic to depict just how the job interview process has evolved as humans have evolved.

It also provides a look at what the next stage in the evolutionary process is likely to be.

Some points of note on mankind’s past:

• In the 18th and 19th centuries, professions were passed on from generation to generation, eliminating the need for the interview process altogether.
• In 1917, the first personality test was created to evaluate World War I solders. A similar test was soon adopted by businesses.
• In 1921, Thomas Edison created a test to evaluate job seekers’ knowledge, and it was leaked to the New York Times (test your knowledge using some of the questions listed on the infographic below).
• In 1969, the Internet is born, although it’s not released to the public in its current form until 1991.
• In 2003, LinkedIn is born.
• Two years later, YouTube is born.

Predictions for the future:

• Smart watches will allow face-to-fact interviews to be conducted on the go.
• Short-form interviews, lasting only a matter of seconds, will become popular.
• Holograms will take the place of in-person, face-to-face interviews.

For more on our past — and our future — check out Spark Hire’s graphic below:

Source: Spark Hire

Quick tip: An oral complaint about an alleged employment law violation is just as valid as an official, written one.  

We recently saw confirmation of that in Greathouse v. JHS Security Inc. A look the the case:

Darnell Greathouse worked as a security guard for JHS Security Inc. Greathouse His boss was Melvin Wilcox, president and part-owner of JHS. During his employment with JHS, Greathouse was, according to court papers, the victim of a number of improper employment practices, including non-payment and late payment of wages, and improper payroll deductions.

Although Wilcox repeatedly told Greathouse that he would receive his outstanding paychecks, the checks never arrived.

Finally, Greathouse complained to Wilcox that he had not been paid in several months. Wilcox responded, “I’ll pay you when I feel like it,” and, without warning, drew a gun and pointed it at Greathouse.

Greathouse took that encounter as a signal that his employment with JHS was at an end.

Invalid complaint?

Greathouse later filed a complaint in the U.S. District Court claiming various FLSA and New York State law violations, including missing and improperly reduced wages and retaliation for complaining about not getting paid.

After neither party appeared or filed an answer, the clerk of court entered defaults against both. The District Court then referred the matter to a magistrate judge to evaluate Greathouse’s claims for damages.

The Magistrate Judge recommendied that the district court enter a damages award in the total amount of $30,658.50, plus prejudgment interest, for Greathouse’s claims for unpaid overtime, unpaid wages, improper deductions, and liquidated damages.

As to the retaliation claim, however, the Magistrate Judge concluded that since Greathouse had not filed a complaint with any government agency or other prosecutorial authority — but had merely confronted his employer in person to demand his missing wages – his FLSA complaint was invalid.

The district court agreed.

Bowing to the High Court

But things were different when the case got to federal appeals court. There, the judges — which had previously held that an oral complaint was valid only if it was made directly to a government agency — bowed to the judgment of the Supreme Court ruling in Kasten v. Saint Cobainin in 2011.

In that case, the court held that an oral complaint is protected by FLSA’s anti-retaliation provision if the complaint is “sufficiently clear and detailed for a reasonable employer to understand it, in light of both content and context, as an assertion of rights protected by the statute and a call for their protection.”

And in the Greathouse case, the complaint fit the criteria.  So the case is remanded to the district court to hear Greathouse’s lawsuit for retaliation.

Ignore oral complaints at your peril

The takeaway from this decision? Here’s some guidance from attorneys  Esteban Shardonofsky and Howard M. Wexler from Seyfarth Shaw:

Following Kasten, and now Greathouse, it is even more important for employers to be sensitive to employees’ intra-company oral as well as written complaints regarding wages, overtime, and hours worked.  Managers and supervisors should be trained to recognize complaints under the FLSA and corresponding state laws and to respond to them appropriately. 

Whether an internal complaint rises to the level of protected activity is a context-specific inquiry.  While the courts continue to assert that there are no “magic words” that an employee must use to assert a complaint and that generalized statements or complaints regarding pay practices may not rise to the level of protected activity under the FLSA (or even under the National Labor Relations Act), this should not embolden employers to ignore vague complaints. 

After all, although you may believe today that a particular complaint is mere “venting” or “blowing off steam,” a court or a jury may later disagree.  Of course, following an employee’s complaint, employers need to ensure that any adverse action is based on legitimate, non-retaliatory reasons and not in response to the complaint.

 

 

 

So it turns out that one in seven Zappos employees opted out of the company’s plan to eliminate managers and job titles. We’re thinking they probably made the right choice.  

Let’s review: A couple weeks ago, Tony Hsieh, CEO of the online shoe retailer, issued an ultimatum to employees — if they didn’t feel they could operate under a new system that did away with traditional managerial roles, they could resign in exchange for at least three months’ severance. They needed to make up their minds by April 30.

Fourteen percent of the workforce took Hsieh up on his offer, according to the Washington Post. Hsieh declined to say how many of those opt-outs were in management or sales positions.

For the remaining 86%, the question looms: Can a totally flat structure — one that operates in “circles” of peer employees — actually get the job done?

‘Everybody’s a leader’

Zappos is relying on a structure called a “Holacracy.”

Here’s a definition of Holacracy, straight off the website:

Holacracy is a distributed authority system – a set of rules that bake empowerment into the core of the organization. Unlike conventional top-down or progressive bottom-up approaches, it integrates the benefits of both without relying on parental heroic leaders. Everyone becomes a leader of their roles and a follower of others’, processing tensions with real authority and real responsibility, through dynamic governance and transparent operations.

As you might imagine, there are those who are skeptical. Take, for instance, Steve Tobak, writing on foxbusiness.com.

Tobak points out that the holocracy idea — “developed by Brian Robertson, a 35-year-old self-taught programmer with little business or management experience beyond running a relatively small Philadelphia-based software services company” — is hardly a simple, self-organizing structure.

First off, “you’d need a team of lawyers to make sense of the Holacracy Constitution, so the company’s website offers a ‘Plain English’ version that is 18,884 words (or about 50 book pages long),” he says. Then there’s a Resource Library full of developer kits, apps and content dictating everything from compensation to nutrition and partnerships.

Add to those a cloud-based tool called GlassFrog that governs meetings, rules, decision-making, checklists, projects, metrics, roles and responsibilities …

Add it all up, and Holocracy “doesn’t sound even remotely like a self-organizing, self-managing system to me. What it does sound like is a grandiose contrivance with all the bureaucracy and administrative minutiae of the federal government combined with the rigid structure of a collectivist cult,” Tobak says.

The final piece

Tobak makes a strong argument, but we think he’s missing a key piece of the puzzle: human nature.

Are we really to believe that “circles” of peers are going to be able to collaborate seamlessly day-in and day-out? That there’ll be no divisive issues that arise during the workday?

That nobody will play politics?

Or throw a co-worker under the bus in order to improve his/her perceived standing?

We’re all for employee empowerment and all of those pie-in-the-sky buzzwords that are so popular now — engagement, self-actualization, onboarding. But for us, it comes down to hiring somebody to do a job and then giving them the room to do it — and more, if they’re capable.

But there has to be a place where the buck stops, and where the hard calls are made.

There has to be a boss.