Tuesday April 24, 2018

Hiring in today’s labor market: 4 candidate ‘red flags’ you may want to overlook

When the job market was at its worst, recruiters could afford to be more selective with candidates they chose to interview. But, in this tight labor market, recruiters need to find ways to widen their hiring pools. 

One way to do this? Try looking at candidates who, in the past, may have been eliminated in the early stages of the hiring process, due to reasons that aren’t exactly relevant anymore.

Evil HR Lady Suzanne Lucas explains which resume “red flags” shouldn’t immediately disqualify a candidate, since after an interview, you might discover they would be a good fit.

1. Laid off from last job

Lay-offs are not at all representative of an employee’s ability or work ethic. Over 300,000 workers experienced lay-offs during the 2008-2009 recession; odds are, many of them were good employees who were just in the wrong job at the wrong time.

Often, a lay-off is just an indicator of financial instability at a candidate’s previous company. To get to the reason behind the lay-off, ask a candidate if they could explain a little bit about their previous company’s situation during this time.

2. Big gaps in work history

According to the Bureau of Labor Statistics, there are 1.4 million Americans who have been unemployed for 27 weeks or longer.

But just because candidates have been out of the workforce for a while, doesn’t mean they’d be a bad hire. There could be many reasons why it’s been a while since their last job — but you won’t know unless you ask them about it.

To get a better idea of what they could bring to the table, ask these candidates what their short-term and long-term career goals are.

3. No bachelor’s degree

In today’s job market, a bachelor’s degree seems like a requirement for practically every job. But ask yourself: Is that degree really necessary for this job? Or could years of work experience make up for the lack of college education?

When speaking to these candidates, find out more about relevant skills they’ve learned over the years. See if they have further education plans in the future, too.

4. Record of job-hopping

At first glance, switching jobs a lot seems like a deal-breaker. Why should you hire someone if they most likely won’t stick around? And maybe they do get bored easily, but there might be an explanation for all the job-hopping.

The candidate might’ve joined a start-up that went under in six months. Maybe their spouse got a job across the country so they moved, or maybe they had the worst manager in the world.

None of these reasons have anything to do with the candidate being disloyal or wishy-washy, but you won’t know unless you ask.



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IRS’ first FAQ on paid-leave credit answers some key questions

Employers finally have federal guidance regarding the paid-leave tax credit created under the Tax Cuts and Jobs Act (TCJA), but that guidance is likely to fall short of what many firms were expecting.

In fact, in the initial FAQ on the tax-credit, the IRS even said it will eventually offer more comprehensive guidance for employers. But until that additional guidance comes, employers will have to make do with what the feds just rolled out.

12.5% to 25% credit

What employers already knew about the credit: It was established for employers that provide paid family and medical leave, as described under the FMLA, to employees for wages paid between Jan. 1, 2018, and Dec. 31, 2019 and will sunset unless Congress decides to extend it. Employees on leave must be paid at least 50% of their normal wages while on leave.

The tax credit ranges from 12.5-25% of the amount of wages paid to a worker during leave, depending on exactly how much of their normal wages are actually paid out. The credit only applies to those who earn below $72,000 and doesn’t apply if by paid leave is mandated by their state or local law.

While the FAQ essentially reiterated a lot of what was in the TCJA, it did clarify what constitutes “paid family and medical leave” under the credit:

  • Birth of an employee’s child and to care for the child.
  • Placement of a child with the employee for adoption or foster care.
  • To care for the employee’s spouse, child, or parent who has a serious health condition.
  • A serious health condition that makes the employee unable to perform the functions of his or her position.
  • Any qualifying exigency due to an employee’s spouse, child, or parent being on covered active duty (or having been notified of an impending call or order to covered active duty) in the Armed Forces.
  • To care for a service member who is the employee’s spouse, child, parent, or next of kin.

In addition, if employers provide paid vacation, personal, medical or sick leave that isn’t specifically for one of those reasons, it will not be considered family and medical leave for the purposes of the tax credit.

The FAQ also clarified how employers must calculate the credit. For example, companies must reduce their deductions for wages paid by the amount of any tax credit for paid leave.

The attorneys over at Winston & Strawn LLP offered a specific example of how the calculation would apply to an employee earning $50,000 that included $5,000 of paid FMLA leave. In this example, the employer received a $1,250 credit for the leave it provided. Therefore, it could only deduct $48,750 of the employee’s wage expense ($50,000-$1,250).

What the feds didn’t include

Despite the clarifications, the IRS said has a lot more guidance coming on the finer points of the credit. Specifically, the agency said it will address (“eventually”), the following in future guidance:

  • When the written policy [on paid FMLA for purposes of tax-credit calculation] must be in place;
  • How paid “family and medical leave” relates to an employer’s other paid leave;
  • How to determine whether an employee has been employed for “one year or more”;
  • The impact of state and local leave requirements; and
  • Whether members of a controlled group of corporations and businesses under common control are treated as a single taxpayer in determining the credit.

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FLSA violation? Church members told it was ‘blasphemy’ not to volunteer at the ‘Lord’s Buffet’

At first glance, church members volunteering at their parish’s buffet restaurant seems like it’s on the up and up. But when it’s discovered that these volunteers were coerced and threatened with religious consequences, the DOL’s going to get involved. 

Worried about ‘failing God’

Grace Cathedral Church in Akron, OH owned and operated a restaurant called Cathedral Buffet. While the restaurant had a few employees, the church mostly relied on volunteers to keep it running.

But its hellish volunteer recruiting methods quite literally put the fear of God in Grace Cathedral churchgoers.

The church’s reverend referred to the restaurant as “The Lord’s Buffet,” and told people that every time they didn’t volunteer, they were “closing the door on God.”

When managers of the restaurant contacted volunteers asking them to work a shift, they told the churchgoers that the reverend would find out if they refused to work.

Many volunteers agreed to shifts, worried they’d be “failing God” if they didn’t.

DOL: ‘Violation of FLSA’

The DOL filed a lawsuit against Cathedral Buffet, stating that these practices were a clear violation of the FLSA.

The restaurant heavily relied on its volunteers, even admitting it used them to “save money.” It also had them do the tasks of regular employees, such as washing dishes, serving customers and manning the register. The DOL pointed out that the church had a “high level of control” over the volunteers as well.

The DOL said that not paying these volunteers violated the minimum wage provision of the FLSA, since they were doing the work of paid employees. A judge agreed, and ordered Cathedral Buffet to pay almost $400,000 in back wages and liquidated damages.

Not so fast …

But recently, the 6th Circuit reversed this decision, letting the restaurant off the hook.

The circuit court said that these volunteers shouldn’t have been paid as employees, because they had no “expectation of compensation.” Since the volunteers knew their work would be for free, there was no FLSA violation, the 6th Circuit said.

When the “spiritual coercion” issue was brought up, the circuit court said this isn’t prohibited by the FLSA. There are no guidelines regulating the circumstances under which someone volunteers for a job.

For the time being, it looks like Cathedral Buffet won’t be paying for its sins, but the managers still might want to head to confession.

Cite: Acosta v. Cathedral Buffet, Inc., U.S. Crt. of App. 6th Cir., No. 17-3427, 4/16/18.

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Employee fakes cancer to get leave: How vigilant manager stopped the abuse

When an employee requests time off because of something as serious as a cancer diagnosis, 99% of the time the person will be telling the truth about their situation. But as a recent case shows, if a manager has even an inkling that something’s amiss, it pays to take a closer look.

In the case of former U.S. Postal Service (USPS) employee Caroline Boyle, a supervisor’s skepticism likely foiled an egregious — and illegal — abuse of leave.

Here’s what happened: Boyle let her supervisor know she needed to take some time off because she’d been diagnosed with non-Hodgkins lymphoma. The request came after the 25-year veteran was denied a promotion (we’ll get to that later). Over the 20 months that followed the request, Boyle took 112 days of sick leave and worked from home part-time to attend her frequent doctor’s visits.

Boyle’s manager even allowed her to work from home and approved paid administrative leave that didn’t count against her sick leave.

Incorrect spelling sparks questions

Boyle provide a number of doctor’s notes to support her time-off and other accommodation requests for her cancer and, more than a year after letting USPS know about her “condition,” a manager became suspicious about her claims.

That suspicion prompted a USPS investigator to take a closer look at the doctor’s notes that had been provided. During that process, the investigator discovered that Boyle had spelled one of her cancer doctor’s names incorrectly. This led the investigator to question all of the facilities in which Boyle claimed to receive treatment and, lo and behold, none of those facilities had any record of Boyle as a patient.

Losing her job at the USPS was the least of Boyle’s concerns. She was also indicted by a federal grand jury on felony counts of forged writings, wire fraud and possession of false papers to defraud the United States.

Based on a former subordinate’s situation

The real drama in this case actually took place in the courtroom, where Boyle admitted to not only faking her cancer diagnosis but also revealed her motive for doing so: She was upset because she didn’t get a promotion.

Stranger still, Boyle essentially based her entire fraudulent leave claim on a former subordinate of hers. During the sentencing, Lisa Roberts testified that Boyle’s made-up cancer diagnosis was a carbon copy of her real one.

What’s more, when Roberts requested time off for treatment, Boyle accused her of faking the cancer diagnosis to take a long vacation, prodded Roberts on the reason she didn’t lose her hair and demanded that Roberts turn off her confidential medical records.

Roberts said Boyle used those very same medical records to back up her own fake cancer diagnosis.

While the details of this strange, strange case sound like details plucked straight from a made-for-TV movie, the takeaway for employers is easily transferrable to more pedestrian workplace situations: If managers suspect something is amiss with an employee’s leave request, allow them to follow their instincts — provided they do so within the specific confines of the relevant applicable laws. After all, front-line managers are often your first-line of defense against leave abuse.

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Employees name 4 biggest workplace distractions: Here’s how to help them

It’s not surprising that a recent survey found 69% of full-time employees get distracted at work.

The more interesting finding is that 70% of workers think their managers could help them focus better through training. 

Udemy conducted a survey of 1,000 full-time office workers in the U.S. to find what was causing the distractions, how employees cope with them and what employers can do to help workers regain their focus.

Biggest distractions

Fifty-four percent of employees believe they are underperforming due to workplace distractions. Here’s what topped the list:

  • Talkative co-workers (80%)
  • Office noise (70%)
  • Meetings (60%), and
  • Social media (56%).

The majority of workers who said social media was the biggest distraction admitted that its use wasn’t work-related, but they couldn’t get through the day without checking personal accounts. One-third of millennial employees are on their phones for up to two hours during the workday.

A lot of workers are aware these distractions affect their productivity and try to combat them on their own.

Forty-three percent of employees shut their cell phones off during work. Thirty percent listen to music to block out conversations and other noises. And when workers know they’re distracted and won’t be able to focus, 26% use that time to complete simpler tasks.

What employees need to focus

Distractions not only impact productivity, but also have a long-term impact on careers.

Twenty-two percent of workers think distractions can prevent them from reaching their full potential and advancing in their careers, while 34% said distractions simply make them like their job less.

Employees had some ideas of what would make them more inclined to focus at work:

  • Trying new things (54%)
  • Being encouraged to learn new skills (42%)
  • Knowing the path for professional advancement (35%), and
  • Participating in workplace trainings (22%).

The survey also found some more tangible things employers can do to cut down on distractions. Here are the top suggestions:

  • Allow flexible schedules/telecommuting (40%)
  • Have designated spaces for quiet work and teamwork (38%)
  • Provide time management training (37%)
  • Define office norms for noise levels, conversations, etc. (31%), and
  • Have regular “no meetings” days.



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Recruiting 2.0: Don’t break these 3 rules when you’re texting new talent

More and more recruiters are communicating with talent through text messaging. It’s faster than email, and candidates appreciate being kept in the loop throughout the hiring process. 

Once this method of communication is opened up, it can be easy to overdo it with the texts, which could ruin relationships with promising new hires.

To maintain that delicate balance, some professional recruiters shared their three golden rules when it comes to texting candidates.

1. Ask permission first

An unexpected text message can be seen as intrusive, so it’s important to ask if the candidate is OK with it during your initial conversation.

If the text is your first point of contact, keep it short. Experts say your message should contain only your name, position, company and reason for the text. Your goal should be to open the door to further communication, not give them a sales pitch. If the person doesn’t respond, don’t text again, or it could be considered harassing.

2. Less is more

Texts are best for quick updates or short follow-up questions. It can be a good way to set up last-minute interviews. Lengthy conversations should still be conducted over the phone or through email. The last thing a candidate wants is to be bombarded with endless texts. Some experts suggest only texting a candidate about something if they aren’t responding through other channels.

Here’s one instance where you should never text: Research has shown that most candidates would prefer not to get a job offer or rejection via text — over the phone or email is preferred.

3. Keep it professional

Tone can often be misinterpreted through text messages, so it’s best to forgo jokes or sarcasm.

It’s also important to be mindful of boundaries. Some candidates are uncomfortable when recruiters get too friendly or text outside of business hours. Just because you have the ability to contact someone at any time, doesn’t mean you should. And if they text you over the weekend, tell them you’ll respond Monday morning.

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Court: This common pay practice equals discrimination

One of the most common pay-determining techniques could now put your company in legal danger.

The 9th U.S. Circuit Court of Appeals just unanimously ruled that pay differences based on prior salaries are inherently discriminatory under the Equal Pay Act because those past salaries stemmed from gender bias.

The ruling was handed down in Rizo v. Yovino, a lawsuit in which a teacher claimed she was paid thousands of dollars than a male colleague with less experience, education and seniority.

Fresno County had a formal procedure that determined a new hire’s starting salary by taking the new hire’s prior salary, adding 5%, and placing the new employee on the corresponding step of Fresno County’s stepped salary levels.

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7 out of 10 workers can relate to this viral story about a stolen lunch

A recent tweet about a worker’s lunch going missing and security footage being viewed to find the culprit went viral after employees everywhere related to the common office crime. 

Last week, Zak Toscani shared this saga on Twitter: A co-worker’s lunch was stolen, and HR and the victim viewed the security camera tape to find a colleague removing the man’s lunch from the fridge and tossing it into the trash. The man didn’t want her to get in trouble, but HR emailed the whole company to remind them not to steal, or in this case, throw out, each other’s food.

Common criminals

While the series of tweets were funny, food theft is a common office occurrence that leaves many employees angry and frustrated.

A survey by the online grocer Peapod found that 71% of workers have had a snack, drink or meal stolen from the communal kitchen.  Only about 35% of employees admitted to swiping someone’s food, though.

Art Markman, author of “The Psychology Behind Why People Steal Their Co-Workers’ Stuff,” says that food thieves generally don’t think it’s a big deal and justify their behavior in the following ways:

  • “It’s like the fridge at home — everything’s up for grabs.”
  • “I was starving and couldn’t help myself.”
  • “It’s not like I’m stealing someone’s money.”

Survey respondent John, a self-confessed fridge raider, admits to taking co-workers’ sandwiches or leftovers somewhat regularly. His philosophy is anything’s up for grabs if the person’s already gone home for the day, because “day old food is gross.” He’ll leave things with a longer shelf life alone.

Preventative measures

There are a few ways employers can tackle lunch theft. Offering some free snacks in communal areas can reduce the number of hungry employees who resort to stealing.

Encouraging employees to put their names on their food items can cut down on theft, too. Better yet, bringing food in a brightly colored or personalized lunch bag will make it more noticeable when a worker has food that isn’t theirs.

From an HR standpoint, Markman says food theft can really damage morale and cause friction between employees. Taking measures to catch and discipline lunch thieves can send a clear message that stealing food won’t be tolerated.


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Supreme Court declines ADA leave case: Why that’s not a bad thing

So the Supreme Court decided not to tackle whether extended leave is a reasonable ADA accommodation. But that could be more good news than bad for employers.

The Supreme Court has declined to review an appeals court ruling in Severson v. Heartland Woodcraft, Inc.

In that case, the 7th Circuit Court ruled that “a multimonth leave of absence is beyond the scope of a reasonable accommodation.”

By declining to take up that case, the Court leaves the Severson ruling in effect. And that ruling — a ruling which the court said “[l]ong-term medical leave is the domain of the FMLA” — was hailed as a huge victory for employers.

Although the 7th Circuit ruling only applies directly to employers in Illinois, Indiana and Wisconsin, a number of other circuit courts have handed down similar rulings on extended leave under the ADA.

Doesn’t permit essential functions

As HR Morning covered previously, the Severson case centered on when extended leave becomes an undue hardship for employers. In that case, Raymond Severson had a back condition that required surgery. After his FMLA leave was exhausted, Severson requested additional time off. Heartland Woodcraft terminated him, but encouraged Severson to reapply once he was better.

Severson took the company to court, claiming his employer failed to give him the accommodation he needed — more leave. Heartland Woodcraft argued that Severson had already been granted six months of leave and it just wasn’t reasonable to give him any more time off.  The court ruled that Severson would not have been able to work if he had been granted this additional leave, which is an essential part of an ADA accommodation request.

“Medical leave spanning multiple months does not permit the employee to perform the essential functions of his job,” the court said. It also added that long-term medical leave is what the FMLA is for, not the ADA.

Not a leave-entitlement statute

For employers, leaving the 7th Circuit’s ruling intact is ultimately a good thing. That ruling — and similar rulings — interprets the ADA as an “anti-discrimination” law as opposed to a “leave-entitlement” statute. So even though employers may have to grant some extended leave as an ADA accommodation in certain situations (and engage in the interactive process in all cases in which the ADA is in play), they now have some guidance into how much leave is too much in the court’s eyes.



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NFL cheerleader rulebook sounds sexist … but is it illegal?

While it may come as no surprise the NFL has strict rules about cheerleaders’ appearance and conduct, the league might be in trouble for not imposing similar rules on their players.

Bailey Davis, a cheerleader for the New Orleans Saints, was recently fired for posting a photo of herself in a revealing outfit on Instagram. This violated the NFL’s code of conduct, which states cheerleaders cannot pose for photos semi-nude or in lingerie.

But Davis filed a complaint with the EEOC, claiming the reason for her firing was discriminatory. There are dozens of rules restricting what the female cheerleaders can do outside of work, yet the same rules don’t apply to the male football players — they can post whatever photos they want.

The rulebook

The cheerleader code of conduct has many appearance-based rules, such as hygiene guidelines and an “ideal weight” requirement (Cincinnati cheerleaders can’t go more than three pounds over that).

But the rules at the center of this complaint are the ones that apply to the Saints cheerleaders when they aren’t performing:

  • Cheerleaders must avoid contact with all players, including in person and on social media.
  • Cheerleaders cannot be in the same room as players.
  • Cheerleaders can’t dine in the same restaurant as the players. If a player enters while cheerleaders are dining, they must leave the restaurant.

Davis’s complaint is that these rules do not apply to the players. They are free to initiate contact with cheerleaders and eat in a restaurant despite any cheerleaders already being there — the burden is on the cheerleaders to ignore players’ advances or to leave the restaurant.

The Saints are defending the rules, however, saying they are in place to protect cheerleaders from harassment. But Davis’s lawyer points out the discriminatory nature of this thinking:

“If the cheerleaders can’t contact the players, then the players shouldn’t be able to contact the cheerleaders. The antiquated stereotype of women needing to hide for their own protection is not permitted in America and certainly not in the workplace.”

Similarly situated?

Employment attorney Jon Hyman, of Ohio Employer Law Blog, says it all comes down to whether the cheerleaders and the players are similarly situated.

Businesses are allowed to have different sets of rules for different groups of employees, and it doesn’t really seem like cheerleaders and players are similarly situated. If certain rules applied to female cheerleaders but not male ones, for example, then Davis would have a stronger case of sex discrimination.

However, Hyman says that businesses should be wary of having rules that strictly apply to employees who happen to be one gender. Employers should ask themselves: Is there a legitimate need for rules to only apply to this group?



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