Supreme Court upholds state immigration requirements

CHAMBER OF COMMERCE OF UNITED STATES OF
AMERICA v. WHITING

The Immigration Reform and Control Act (IRCA) makes it “unlawfulfor a person or other entity . . . to hire, or to recruit or refer for a fee,for employment in the United States an alien knowing the alien is anunauthorized alien.” 8 U. S. C. §1324a(a)(1)(A). Employers that vio-late that prohibition may be subjected to federal civil and criminal sanctions. IRCA also restricts the ability of States to combat em-ployment of unauthorized workers; the Act expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or re-cruit or refer for a fee for employment, unauthorized aliens.” §1324a(h)(2). IRCA also requires employers to take steps to verify an employee’seligibility for employment. In an attempt to improve that verificationprocess in the Illegal Immigration Reform and Immigrant Responsi-bility Act (IIRIRA), Congress created E-Verify—an internet-basedsystem employers can use to check the work authorization status ofemployees.Against this statutory background, several States have recently enacted laws attempting to impose sanctions for the employment ofunauthorized aliens through, among other things, “licensing and similar laws.” Arizona is one of them. The Legal Arizona WorkersAct provides that the licenses of state employers that knowingly orintentionally employ unauthorized aliens may be, and in certain cir-cumstances must be, suspended or revoked. That law also requires that all Arizona employers use E-Verify. The Chamber of Commerce of the United States and various busi-ness and civil rights organizations (collectively Chamber) filed this federal preenforcement suit against those charged with administer-ing the Arizona law, arguing that the state law’s license suspensionand revocation provisions were both expressly and impliedly pre-empted by federal immigration law, and that the mandatory use of E-Verify was impliedly preempted. The District Court found that the plain language of IRCA’s preemption clause did not invalidate theArizona law because the law did no more than impose licensing con-ditions on businesses operating within the State. Nor was the state law preempted with respect to E-Verify, the court concluded, because although Congress had made the program voluntary at the nationallevel, it had expressed no intent to prevent States from mandatingparticipation. The Ninth Circuit affirmed.
Held: The judgment is affirmed. 558 F. 3d 856, affirmed. THE CHIEF JUSTICE delivered the opinion of the Court with respect to Parts I and II–A, concluding that Arizona’s licensing law is not ex-pressly preempted.Arizona’s licensing law falls well within the confines of the author-ity Congress chose to leave to the States and therefore is not ex-pressly preempted. While IRCA prohibits States from imposing “civilor criminal sanctions” on those who employ unauthorized aliens, it preserves state authority to impose sanctions “through licensing and similar laws.” §1324a(h)(2). That is what the Arizona law does—it instructs courts to suspend or revoke the business licenses of in-state employers that employ unauthorized aliens. The definition of “li-cense” contained in the Arizona statute largely parrots the definition of “license” that Congress codified in the Administrative Procedure Act (APA).The state statute also includes within its definition of “license” documents such as articles of incorporation, certificates of partner-ship, and grants of authority to foreign companies to transact busi-ness in the State, Ariz. Rev. Stat. Ann. §23–211(9), each of which has clear counterparts in APA and dictionary definitions of the word “li-cense.” And even if a law regulating articles of incorporation and the like is not itself a “licensing law,” it is at the very least “similar” toone, and therefore comfortably within the savings clause. The Chamber’s argument that the Arizona law is not a “licensing” law be-cause it operates only to suspend and revoke licenses rather than to grant them is without basis in law, fact, or logic. The Chamber contends that the savings clause should apply only tocertain types of licenses or only to license revocation following an IRCA adjudication because Congress, when enacting IRCA, elimi-nated unauthorized worker prohibitions and associated adjudicationprocedures in another federal statute. But no such limits are even remotely discernible in the statutory text. The Chamber’s reliance on IRCA’s legislative history to bolster itstextual and structural arguments is unavailing given the Court’sconclusion that Arizona’s law falls within the plain text of the savingsclause. Pp. 9–15.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part II–B:
The Arizona licensing law is not impliedly preempted by federal law. At its broadest, the Chamber’s argument is that Congress in-tended the federal system to be exclusive. But Arizona’s procedures simply implement the sanctions that Congress expressly allowed the States to pursue through licensing laws. Given that Congress spe-cifically preserved such authority for the States, it stands to reasonthat Congress did not intend to prevent the States from using appro-priate tools to exercise that authority. And here Arizona’s law closely tracks IRCA’s provisions in all ma-terial respects. For example, it adopts the federal definition of who qualifies as an “unauthorized alien,” compare 8 U. S. C. §1324a(h)(3)with Ariz. Rev. Stat. Ann. §23–211(11); provides that state investiga-tors must verify the work authorization of an allegedly unauthorized alien with the Federal Government, making no independent deter-mination of the matter, §23–212(B); and requires a state court to “consider only the federal government’s determination,” §23–212(H). The Chamber’s more general contention that the Arizona law is preempted because it upsets the balance that Congress sought to strike in IRCA also fails. The cases on which the Chamber relies in making this argument all involve uniquely federal areas of interest, see, e.g., Buckman Co. v. Plaintiffs’ Legal Comm., 531 U. S. 341. Regulating in-state businesses through licensing laws is not such an area. And those cases all concern state actions that directly inter-fered with the operation of a federal program, see, e.g., id., at 351. There is no similar interference here. The Chamber asserts that employers will err on the side of dis-crimination rather than risk the “ ‘business death penalty’ ” by “hir-ing unauthorized workers.” That is not the choice. License termina-tion is not an available sanction for merely hiring unauthorizedworkers, but is triggered only by far more egregious violations. And because the Arizona law covers only knowing or intentional viola-tions, an employer acting in good faith need not fear the law’s sanc-tions. Moreover, federal and state antidiscrimination laws protect against employment discrimination and provide employers with a strong incentive not to discriminate. Employers also enjoy safe har-bors from liability when using E-Verify as required by the Arizonalaw. The most rational path for employers is to obey both the law barring the employment of unauthorized aliens and the law prohibit-ing discrimination. There is no reason to suppose that Arizona em-ployers will choose not to do so. Pp. 15–22.
THE CHIEF JUSTICE delivered the opinion of the Court with respect to Part III–A, concluding that Arizona’s E-Verify mandate is not im-pliedly preempted.
Arizona’s requirement that employers use E-Verify is not impliedlypreempted. The IIRIRA provision setting up E-Verify contains no language circumscribing state action. It does, however, constrain federal action: absent a prior violation of federal law, “the Secretaryof Homeland Security may not require any person or . . . entity” out-side the Federal Government “to participate in” E-Verify. IIRIRA, §402(a), (e). The fact that the Federal Government may require the use of E-Verify in only limited circumstances says nothing aboutwhat the States may do. The Government recently argued just thatin another case and approvingly referenced Arizona’s law as an ex-ample of a permissible use of E-Verify when doing so. Moreover, Arizona’s use of E-Verify does not conflict with the fed-eral scheme. The state law requires no more than that an employer, after hiring an employee, “verify the employment eligibility of theemployee” through E-Verify. Ariz. Rev. Stat. Ann. §23–214(A). And the consequences of not using E-Verify are the same under the state and federal law—an employer forfeits an otherwise available rebut-table presumption of compliance with the law. Pp. 23–24.
THE CHIEF JUSTICE, joined by JUSTICE SCALIA, JUSTICE KENNEDY, and JUSTICE ALITO, concluded in Part III–B:
Arizona’s requirement that employers use E-Verify in no way ob-structs achieving the aims of the federal program. In fact, the Gov-ernment has consistently expanded and encouraged the use of E-Verify, and Congress has directed that E-Verify be made available inall 50 States. And the Government has expressly rejected the Cham-ber’s claim that the Arizona law, and those like it, will overload the federal system. Pp. 24–25.

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Why Don;t You Listen to Me?

Knowledge@Wharton e-letter released an article about the role of middle management executives in the knowledge age

Normal 0 false false false EN-US X-NONE X-NONE Why Middle Managers May Be the Most Important People in Your Company
Wharton management professor Ethan Mollick has a message for knowledge-based companies: Pay closer attention to your middle managers because they may have a greater impact on company performance than almost any other part of the organization. Mollick's research, based on an in-depth analysis of the computer game industry, is presented in a new paper titled, "People and Process: Suits and Innovators: Individuals and Firm Performance."
http://knowledge.wharton.upenn.edu/article/2783.cfm

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Hey I don't care how long you have worked here, take it or leave it

How many of you have a policy which reads that if you don't take your earned vacation time, you loose it at the end of the year?

According to CNNMoney and Expedia , US workers gave up 448 million earned but unuded vacation days in 2010. That equates on average to 4 days per employee. If you take the average US wage of $39,208 that is $67.5 billion worth of time that employees did not use.

 

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Don't bother me with the details, I don't care

Have you heard these words or something similar within your organizations? I recently returned from Las Vegas, where I conducted a three day review seminar for a national certification exam. During the course of the three days there were several instances where one of the participants said in regards to some legal situations that their management said they did not care if the process involved something that might lead to adverse conditions they just wanted the situation taken care of.

The difficulty here is that in many cases management has not gotten the message. David Ulrich in his book HR Value Proposition makes the argument that management needs to change its outlook about what it is we in HR do. We need to be judged based on what we deliver not what we do. When I was in the mode of trying to find a full time human resource slot I was getting ruled out because my resume stated I worked a consultant. The logic thread read that because I had worked as a consultant I would have the tendency to rock the boat.

The old school says that the responsibility of HR is to be the administrative arm of the organization. Do the paperwork, follow the status quo, don't try and make things better, we know what we are doing and the organization is not interested in change.

The new world looks upon the total organization, including the human capital management arena, as needing to satisfy the needs of the internal and external customers. In order to do that we need to look at the affect of our actions on both the community as a whole and our organizations. We should not and even more important can't overlook environmental issues that could detrimentally affect the organizational sustainability.

The IRS and other government agencies have stated in numerous cases that ignorance is no excuse. You can't tell your departments we don't care about the details. It is the details that can come back to haunt the organization.Source out the talent you need but don't impact the results by putting constraints on the hiring process centered around the perfect candidate. Work on succession planning but do so by seeking the candidate that is working within your organization who is your mirror. Help the organization to grow by misclassification of an employee because it is the convenient way to do it. You might very well find yourself in the FedEx Massachusetts case where by ignoring the details you just cost the organization three million dollars to rectify an error in judgement.

If you are the future of the organization then it is your duty and responsibility to care about the details. Think before you decide that that short cut is the way you want to go. If Human resources or one of your vendors tells you are headed in the wrong direction don't just sweep it under the rug. Inevitably when a new manager comes in they will find the dust under the rug and it will be detrimental to everyone involved down the road.

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Manpower Releases Talent Survey Results

ManpowerGroup today releases the results of its sixth-annual Talent Shortage Survey, revealing that 52 percent of U.S. employers are experiencing difficulty filling mission-critical positions within their organizations, up from 14 percent in 2010. The number of employers struggling to fill positions is at an all-time survey high despite an unemployment rate that has diminished only marginally during the last year. U.S. employers are struggling to find available talent more than their global counterparts, one in three of whom are having difficulty filling positions.

According to the more than 1,300 U.S. employers surveyed, the jobs that are most difficult to fill include Skilled Trades, Sales Representatives and Engineers, all of which have appeared on the U.S. list multiple times in the past. The survey also highlights the most common reasons employers say they are having trouble filling jobs, including candidates looking for more pay than is offered, lack of technical skills and lack of experience.

"The fact that companies cite a lack of skills or experience as a reason for talent shortages should be a wake-up call for employers, academia, government and individuals," said Jonas Prising, ManpowerGroup president of the Americas. "It is imperative that these stakeholders work together to address the supply-and-demand imbalance in the labor market in a systematic, agile and sustainable way. There may also be an increasing imbalance between employers willingness to pay higher salaries in what is still a soft general labor market compared to the salary expectations of prospective employees, especially those with skills that are in high demand."

In the United States, the top 10 hardest jobs to fill include:

U.S. Hardest Jobs to Fill in 2011

1. Skilled Trades
2. Sales Representatives
3. Engineers
4. Drivers
5. Accounting & Finance Staff
6. Drivers
7. Management/Executives
8. Teachers
9. Secretaries/Administrative Assistants
10. Machinist/Machine Operator

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Judge rules insurance should pay in Chinese drywall case

TAMPA --

In a ruling that could have widespread implications on Florida's insurance industry, a Hillsborough County Circuit Court judge says an Odessa homeowner's damage from toxic, Chinese-made drywall is covered by his homeowner's insurance policy.

Judge Robert Foster said the gas emanating from the drywall was an "unforeseen occurrence" which caused a "chemical reaction." He said he found no exclusion in the Springfield, Illinois-based Teachers Insurance Co.'s policy that should keep the company from paying to fix Craig and Melissa Walker's Odessa home.

"These (gases) then circulated throughout the house causing an odor, damage to the components within the home and creating an irritant and hazard to human beings," Foster said in his order.

Foster's ruling is particularly noteworthy because it's the first-known ruling in Florida, and perhaps in the nation, in which a judge ruled a homeowner's insurance policy covers Chinese drywall.

Thousands of homeowners have the bad drywall, and most of them are in Florida. The drywall emits a gas that corrodes metal, destroys appliances and, some owners, say, makes people sick. The only way to remediate a home is to gut it down to the studs and rebuild, the federal government has said. This typically costs a whopping $100,000 – even more depending on square footage.

Some builders have done this, but others either won't or have gone out of business. Insurance companies have said their policies typically don't cover defective drywall. Many homeowners have been stuck with uninhabitable homes or have been forced to make the costly repairs themselves.

The Walkers went to their insurance company for help.

"They didn't even send anybody out," Craig Walker said. "They just immediately told us, 'We don't cover that.'"

Lynne McChristian, the Florida representative for the New York-based Insurance Information Institute, said companies have various ways of wording what they cover in policies.

"Homeowner's insurance policies were never designed to cover defective materials and defective building," McChristian said.

Most policies have exclusions that pertain to defects, she said, and that's why many insurance companies have denied Chinese drywall claims.

"Coverage would depend on the interpretation of that language," McChristian said.

That's the case in the Walker's lawsuit. The homeowners sued the insurance company for not covering their damages.

"Our clients paid for insurance and had loss," said Anthony Martino Sr., a Tampa lawyer who represented the homeowners. "This is no different that any other unexpected loss and should be treated no differently than other losses, like lightening or fire."

The Tampa lawyer representing Teachers Insurance Co. argued that a "wear and tear" exclusion and a defective material exclusion pertained to the corrosion of the drywall.

But Judge Foster disagreed. He said the drywall was not defective because it "serves its purpose and functions as drywall." But, he said, the drywall also does something else; it emits a corrosive gas.

Scott Frank, the lawyer for the insurance company, declined to comment for this story.

Foster said the Walker's policy should also cover damage to personal belongings. The policy specifically covered smoke damage, and he interpreted smoke to be the same as gas.

"The court finds that the ordinary meaning as found in a Merriam-Webster dictionary, defines 'smoke' as a 'suspension of particles in a gas.'" Foster wrote in his order. "The court has applied the definition that allows coverage, which is at least as reasonable as the definition that might exclude coverage.

Foster did not determine how much money the policy should pay out to the Walkers. That will be determined by a jury. A trial date has not yet been set.

The Walkers lived in their home for two years before moving out two years ago. All this time, they say they paid their mortgage in addition to rent for another house for their three children.

"I hate that we have to keep waiting," Walker said. "But I feel a lot better now that we have this judge's decision."

Reporter Shannon Behnken can be reached at (813) 259-7804 or sbehnken@tampatrib.com. Follow her on Twitter @TBORealtyCheck.

via tbo.ly

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Interesting argument. True or false?

On the CNN Money site this morning Fortune is currently showing an article from Colin Barr in which he states that the circumstances are right for the hiring levels to increase because they HAVE TO. Mr, Barr's argument for this rests in  the following points:

1. Productivity gains are beginning to decrease after dramatic increases
2. Employerd have harvested al the low-hanging fruit

The result has been that organizations have been asking their human capital to do more with less since the beginning of these economic times. However they have reached the point where these assets can't do more with less so the only recourse is to bring in more bodies to handle the increased workload. It is time that corporations realize that their human capital assets are the reason why they continue to operate, not because they cut expenses to the bare bones.

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Make my HR Day!

I recently had the opportunity to sit down with William Tincup and he turned me on to a website which takes a poke at goings on in the workplace. Each day the site posts a new cartoon looking at life in the workplace. As of April 30 the site contains 500 different cartoons. For a break from the toils of the day visit http://www.onefte.com. Enjoy.

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ADAA Changes

Constangy Brooks and Smith LLP has released a client update regarding the changes to ADAA and employment practices

Normal 0 false false false EN-US X-NONE X-NONE

NO MORE "BUSINESS AS USUAL":
ADAAA Regulations Will Be a Bear for Employers

By Kristen Allman and Robin Shea
Tampa, FL and Winston-Salem, NC Offices

May 2, 2011

The Americans with Disabilities Act Amendments Act of 2008 and the Final Rule interpreting the ADAAA, which was issued last month by the U.S. Equal Employment Opportunity Commission, will mean significant changes for employers who are dealing with employees' medical conditions.

Simply put, the ADAAA and the EEOC's new regulations mean that virtually anyone with a medical condition will arguably have a "disability" within the meaning of the ADA. The express purpose of the ADAAA was to significantly ease, if not eliminate, the plaintiff's burden of showing as a threshold matter that he or she had a "disability" and thus was entitled to the non-discrimination and reasonable accommodation protections of the Act.

On the surface, the Amendments Act and the regulations do not change an employer's other ADA obligations. However, the breadth of the new definition of "disability" means that many more employees and applicants will be "protected," which in turn means that employers are vulnerable to claims from a larger class of individuals and will have to consider reasonable accommodations in many more cases than before.

The original ADA defined "disability" as a physical or mental impairment that "substantially limited" a "major life activity," or a record (history) of such an impairment. It also protected individuals who were "regarded as" (or perceived as) having such impairments. As interpreted by the courts, "substantial limitation" meant a significant limitation when compared with the general population, and generally required that the condition be both long-term and severe. The original list of "major life activities" was relatively short, and included walking, speaking, caring for oneself, performing manual tasks, seeing, hearing, breathing, learning, and working. To be substantially limited in the major life activity of working, the individual had to be substantially limited in working, plus one additional major life activity.

The New "Substantially Limits": Not Very "Substantial"

By its terms, the ADAAA still requires a "substantial limitation," but "substantial" no longer means what it says. The ADAAA legislatively overruled several decisions from the U.S. Supreme Court that had taken a restrictive view as to who qualified as "disabled." Among other things, the Supreme Court had held that "mitigating measures" had to be considered in determining whether an individual was "substantially limited" – in other words, if the condition could be controlled through medication, surgery, or other means, then the individual was not "disabled" even though he or she might have had a medical condition that in its untreated state would be substantially limiting.

EXAMPLE: Linda has epilepsy, but because of her medication, she has not had a seizure in 20 years. She is able to drive a car and operate other heavy machinery. Under the "old" ADA standards, Linda would not have been "disabled" because her medications allowed her to function normally – therefore, she was not "substantially limited." Under the ADAAA, however, Linda has a "disability" simply because she has the underlying condition of epilepsy. The fact that her medicine has eliminated the effects of her condition cannot be taken into account.

(NOTE: Vision impairments that are corrected by normal eyeglasses and contact lenses are not considered "substantially limiting," even under the ADAAA. Also, although the ADAAA prohibits an employer from considering the positive effects of mitigating measures in determining whether an individual is disabled, the employer can consider both positive and negative effects of mitigating measures when determining whether an individual requires reasonable accommodation or poses a direct threat.)

The ADAAA and the regulations also provide that episodic conditions, or conditions that are in remission, are "disabilities." In short, the EEOC says, the determination of whether an individual has a "substantial limitation" "should not demand extensive analysis." According to the EEOC, the employer's attention should focus on whether it has met its ADA obligations and not whether an individual's impairment substantially limits a major life activity.

·         "Substantial limitation" is determined by a common sense assessment of the individual's ability to perform a specific major life activity or bodily function compared with that of most people in the general population.

·         A lesser degree of "limitation" is required than was required under the original ADA.

·         An impairment that substantially limits one major life activity, such as working, need not limit other major life activities in order to be a disability.

·         An impairment substantially limits "working" when it limits an individual's ability to perform or meet the qualification for a "type of work," including (1) the nature of the work in which the individual is limited when compared with most people having similar training, skills and abilities (for example, DOT-regulated commercial motor vehicle driving jobs, assembly line positions, food service jobs, clerical jobs and law enforcement positions); or (2) job-related requirements that an individual is limited in meeting due to an impairment as compared to most people performing those jobs (for example, repetitive bending, reaching or manual tasks; repetitive or heavy lifting; prolonged sitting or standing; extensive walking; working in high temperatures, high noise levels or high stress; or ability to work rotating, irregular or excessively long shifts).

·         An individual who claims to be substantially limited in the "performance of manual tasks" no longer has to show that he or she is unable to perform a variety of tasks central to daily living.

·         Although positive effects from mitigating measures are not to be considered in determining whether an individual has a disability, negative effects (such as side effects of medication) are to be considered.

·         An actual impairment or record of impairment can be "substantially limiting" even if it lasts or is expected to last less than six months.

• A "substantial limitation" may exist even if the individual has overcome obstacles and achieved success.

EXAMPLE: Harold has dyslexia, but through hard work and determination has managed to get a Ph.D. in nuclear physics from MIT. Under the "old" ADA, he would not be considered to have a "disability" because he achieved and outperformed most people in the general population. However, under the ADAAA and the new regulations, Harold would still be considered to have a "disability" because of the additional time or effort required for him to read, write, and learn when compared with the non-dyslexic population.

·         Certain conditions are "substantially limiting" per se: deafness, blindness, intellectual disabilities, missing limbs, mobility impairments, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, obsessive-compulsive disorder, and schizophrenia.

·         A person who has been misclassified in educational, medical or employment records as having a substantially limiting physical or mental impairment has a "record of impairment."

Expanded List of "Major Life Activities"

The Amendments Act keeps the original ADA's conservative list of "major life activities," but adds eating, standing, lifting, bending, concentrating, thinking, communicating, reading, and sleeping. The EEOC regulations issued last month add three more major life activities – sitting, reaching, and interacting with others – and provide that even this long list is not "exhaustive." The Amendments Act explicitly overruled the Supreme Court's 2002 decision in Toyota Manufacturing Co. of Kentucky v. White, meaning that, now, only one major life activity need be limited for the person to be considered "disabled."

"Major Bodily Functions"

Additionally, under the ADAAA, an individual will be disabled if he or she is "substantially limited" in a "major bodily function," a completely new category. The statute lists the following "major bodily functions": immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive. The EEOC regulations add the hemic, lymphatic, musculoskeletal, special sense organs and skin, genito-urinary, and cardiovascular systems.

"Regarded As"

Because the proof is so much simpler, the EEOC is aggressively encouraging charges to be filed under the "regarded as" prong, even if the charging parties have "actual" or "record" disabilities. (Although employers do not have to make reasonable accommodations for individuals whose disabilities are only perceived, they must not discriminate against such individuals.)

In order to meet the ADAAA's "regarded as" prong, the individual must show (1) that the employer engaged in a "prohibited action" (and note that this does not mean an "illegal action" but only an adverse employment action, such as a failure to hire or promote, or a termination) and (2) that the adverse action was based on the employer's perception that the individual was impaired. This is enough to establish that the employer "regarded" the individual as having a disability.

The employer still theoretically has the opportunity to show that it did not unlawfully discriminate against the individual, even if the individual wins on the "regarded as" prong. However, it is difficult to see how an employer can prevail if the individual has already established that he or she had only a "perceived" impairment – in other words, not an actual impairment that might hinder the individual's ability to perform the job – and that the adverse action was based on that perceived impairment.

The only perceived impairments that are excluded from "regarded as" are those that are both "transitory" (short in duration, generally less than six months) and "minor" (not serious).

The EEOC regulations provide that the following will not result in a "regarded as" finding: (1) asking an employee who seems to be having trouble performing the job because of an impairment whether he or she needs a reasonable accommodation; (2) requesting medical information during the reasonable accommodation "interactive process"; or (3) requesting medical information based on an objectively reasonable belief that the individual presents a "direct threat."

"Regarded as" claims are likely to escalate, not only because of the EEOC's aggressive promotion of the claims, but also as older workers try to cope with the recent economic downturn. These employees will be in a position to claim that non-transitory conditions attendant with aging, such as arthritis, diabetes, hearing loss, vision loss and mobility issues, have resulted in adverse action.

As stated above, the ADAAA does not change the employer's non-discrimination and reasonable accommodation obligations, apart from making them applicable to a much larger population. But because these issues will arise more often now, employers should re-familiarize themselves with the reasonable accommodation process and their obligations, as well as reasonable accommodations that they do not have to make. In addition, employers should

·         Realize that the changes to the ADA will also have an effect on other laws, such as the Family and Medical Leave Act, the Genetic Information Non-Discrimination Act, the HIPAA privacy rule, the Occupational Safety and Health Act, and state workers' compensation laws.

·         Realize that ADA case law based on actions or omissions that occurred before January 1, 2009 (the effective date of the ADAAA) are of limited or no precedential value if they were based on a finding of "no disability." (Older cases dealing with non-discrimination and reasonable accommodation may still be valid.)

·         Realize that it will be difficult, if not impossible, to defend an ADA case on the ground that the plaintiff or charging party is not "disabled."

·         Review (and, if necessary, amend) post-offer medical screening to ensure that offers are withdrawn only after an individualized assessment and attempt at reasonable accommodation.

·         Review (and, if necessary, amend) policies governing "automatic" termination at the conclusion of medical leaves of absence to ensure that any such terminations are based on a "final" individualized assessment and attempt at reasonable accommodation.

·         Ensure that operations management and front-line supervisors are trained in the "original" ADA and are aware of the ADAAA's expansion of coverage. Under the Supreme Court's recent decision in Staub v. Proctor Hospital, an employment decision that was "tainted" by a supervisor with a discriminatory motive could result in liability for the employer, even if the decisionmaker had a pure heart.

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It's the Process Stupid!

During a recent presentation of our The Ultimate Improvement Cycle: A Six Sigma Approach to Human Capital Management we were at the point of bringing all the concepts together and we were discussing a pyramid of thoughts to wind everything up. One of the blocks in the pyramid states " Focus on the process, not people--avoid the blame game."

One of the seminar participants indicated that teir organizastion had just hired a continuous process improvement guru who constantly says if there is a problem in the organization it is the fault of an employee. But that is not the way it works. That is not going to  grow your department. Wait I misspoke, that tactic will not grow the entire organization.

We all want everything to be perfect. But in real time this is never true. The processes we use to manage human capital are far from perfect. The processes have build in stumbling blocks. Some are small others are large as the sinkhole that just swallowed your neighbors home. In each of these events the problem has nothing to do with the person involved. Primarily the humanbc apital assets are doing exactly what they were told to do. It is the process which is flawed. You want to improve the performance of the organization. Concentrate your efforts on improving the process.

In their book The Workforce Scorecard, Mark Huselid, Brian Becker and Richard W. Beatty make the argument that HR needs to be judged not on what you do but what you deliver. Delivery is a process, so if the delivery is not there it is the way you deliver the expected KSA"s to your organization, it is not the person who is operating within the system.

When we function from the point of view that it is the person's fault the message we are sending is that the human capital asset that we so very much need in this competitive glob al workplace is niot valued for what they contribute to our organization. We are sending the message that we do not want them engaged in our organization because they can never deliver the process to the customer. Concentrating on the person instead of the process means that we do not recognize that what the voice of the customer is telling us has nothing to do with meeting the client's needs.

Understand we are not discounting that there are times when a particular employee just does not get it, when it comes to what the customer needs.Further, we are cognizant of the fact that this needs to be resolved quickly and efficiently. The employee's skills may not match what the process requires. But it is wrong to issue a blanket statement that if the process is not working the operator must be at fault. Continous process improvement case studies have proved that this approach is not only wrong it is dangerous to the organization.

You make the decision - Are you there to ensure the future of your organization or are you there to be the source of  singling out those who are attempting to perform the way you expect but has to learn how to climb this rock wall before they can do so?

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How much am I really worth to the organization?

Every day I open the newspaper in the morning or turn on the evening news and as of late the same stories are on. The GOP has come out with these lists of programs that need to be cut in order to solve the deficit problem faced by this country. I am not negating that there is a spending problem in this country. What I am disputing is the tendency from either side of the aisle when talking about making cuts in spending they reduce everything to the level of a commodity. This can in the long run lead to dramatic changes in our society.

Take the budget debate and convert it to our organizations and their human capital assets. When we find that our organizations are declining for what ever reason the first tendency is to suggest that we cut expenses by cutting overhead. So the first thing that tends to be cut are the trainers and human resource professionals. Usually there are dire results that come as a result. Take the corporate mobility industry as a good example. In 1955 when the industry began, it was done so in response to a real need on the part of individuals who were being moved by their organizations. When we got into the 1990's and early 21st Century, the deliver of relocation services began to be treated by the procurement side of the company as a commodity. The result was that service levels dropped. The needs of the human capital assets were ignored. The level of engagement on the part of employees declined. Instead of being a real live person, the employee became just another number.

Now as we work our way through the budget deficits at the federal, state and organizational level we are headed towards treating our human capital assets as commodities instead of being viable assets of the organization. I have a friend who was the CHO of an organization who was directly told that if was better financially to let him go then to continue to operate as they have been, James Womack in his book Lean Thinking states that unless the organization is on the verge of going out of business there is no reason to lay anyone off. There are sufficient non-value added steps to our processes that you can find the funds to avoid treating your human capital as commodities,

As a member of the C-suite of your organization you have the responsibility to manage the workforce of your organization and this includes respecting and appreciating the worth your human capital assets bring to your organization. It is their creative power which enhances your organization in the marketplace. It is their creative power which provides you with the innovation to be the best in your industry. It is their creative power which makes your organization attractive to the best talent in the world.

As corporate executives you determine the legacy that your organization leaves in the global economy. Are you leaving the legacy which says your human capital is just another number on your balance sheet? Are you telling the available talent that you really want them in your organization but we think that your contribution is limited because you are a commodity? The choice is yours to determine just how much your human capital assets are worth to your organization. The choice is your to determine whether they are a vital part of your organization or just something that can be swept under the rug when times get tough.

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American businesses hire interns

According to CNN Moeny, businesses have converted interns to ful tim epositions at the highest rate in decades. The results are from the annual survey conducted by the National Association of Colleges and Employers. The 58% conversion rate is the highest rate since the survey began in 2001.

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In Plain Sight: Hidden Wastes that Affect the Viability of Your HR Organization Part 5: Solutions

Every organization and every business enterprises is comprised of processes that they use to conduct the business of their organization. As we stated in Part 1 of this series, organizations like people strive to be the best that they can be. In their way are obstacles which are a natural tendency of processes which slow those processes down. The root causes of these slow downs are the types of wastes we presented for discussion in parts 2-4.

In this final part to the series we turn our direction not to those wastes but strategies that have been used by other organizations to remove the wastes. The final objective is to create a standard of work which will  eliminate those wastes and overtime be repeatable within the workforce.

Strategy #1: Redesign the work flow

Take a careful look at your processes. Ensure that as much as possible that everything that your human capital need to complete their assigned tasks are within easy reach. If they require constant access to a fax machine make sure there is one within arms length. If they need access to a particular file make sure it is in a file cabinet next to their desk. After reviewing the waste categories remove any unnecessary steps in the processes.

Strategy #2: Voice of the Customer

The wants and needs of the customer are paramount to the success of the organization. If the organization includes within their processes steps not required by the customer get rid of them. If you have accumulating files which have no bearing on current projects or processes, where ever possible get rid of them.  We would suggest that HR go to the sales and marketing  team and request that you go with them on sales calls to the customer. Use this opportunity to gain a better understanding of the qualifications the customer wants to find in the employees they deal with. Reduce the number of reports by not sending information through the pipeline except where it is specifically requested by a customer (internal or external).

Strategy #3: Simplify movement through your organization

Seriously look at your organization and reduce movement of information and human capital as much as possible. As we already suggested above, redesign work cells to reduce the required movement by your human capital.

Strategy #4: Learn Your Organization

I hear the comments now, I already know my organization. But I would suggest that you may not truly know what you do and why you do it. Initially process map your organization. Follow up that with a value stream map of the organization. The process map provides a macro view of your organization and its process steps. The value stream map adds every document and every time period between the steps. It can be an eye opener to problems within your organization.  The two mapping exercises allow an organization to find ways to reduce the time gaps between process steps. It allows you to limit requests to exactly what the customer says they need.

Strategy #5: Reduce overproduction

Begin by implementing the lean tool and asking the 5 Why questions. Each time you ask the question you get closer to the root of why you do things the way you do. From this eliminate useless data collection and non-value added required steps in those processes.

Strategy #6: Reduce overprocessing

Look at your approval routes. Is it really necessary for the VP of HR to get a job requisition and approve it before the assigned recruiter begins the talent management effort? What if you gave the recruiter the requisition with a copy going to the VP? Move from a system where you continually push candidate information to hiring manager to waiting until they ask for the specific requirements for a specific job need.

Strategy #7: Eliminate the Obstacles in Your processes

Where ever possible automate your process steps. Ensure that every department within your organization adapts the standard of work that the organization has created. If a department thinks they have an idea to improve a process. let them show the entire organization why it is better. Do not let a single department stray from the standard work model.Utilize the DMAIC model from the six-sigma methodology to improve the way you do things.

Strategy #8: Create Skill Benches

Take a page from the playbook of IBM and create skill benches within your organization, When a specific department needs the skills from the bench, the bench assets are sent to the department on a project basis. When the project is complete they return to the skill bench. If there is no new project beginning, then the downtime is used to gain the necessary continuing education to do their jobs better, faster and cheaper.

Strategy #9: Change Your Hiring Metrics

Change your standard of work on hiring from one where the various department managers exercise discretion on manpower needs and adjust resources as needed to one where the organization's manpower capacity is optimized via priorities, scheduling and monetary resources.

Strategy #10: Utilize maximum materials throughout the organization

Review the creative processes within the organization and make sure you are using all available materials. Ensure that unless absolutely necessary e-mails are not printed and kept for eternity. when you create marketing pieces or reports or forms make sure you use all available material resources.

Our premise throughout this series is that in order for your organization to optimize your processes, you need to identify the obstacles to that optimization. Once you have found the roadblocks remove them. The results are that when you have removed the non-value added activities and you have created the standard of work we will increase the bottom line. The very direct result is that you will lower your organization's carbon footprint in the sand. You therefore have made your organization more sustainable - socially, environmentally and economically.

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In Plain Sight: Hidden Wastes that Affect the Viability of Your HR Organization Part 4

As stated previously hidden wastes occur in every process undertaken by our organizations, whether we are looking from the production side or the transactional side. In part 4 the final three types of waste or muda that exist in your  organization are reviewed. These will lead us into the final part which offer possible solutions that would assist your organization in removing the non-value added steps to your processes.

Waste or Muda #7 Defects

We as individuals get highly upset when we purchase something and it is not what we expected because something does not work. Our customers get  highly upset when our processes do not provide exactly what they expect. When looking at the human resource operations these defects can be present in several ways.

The first defect is tied to a great degree with our earlier discussion of the waste found in Motion within the organization. When we expect our employees top make extra trips to retrieve what they need to complete the tasks their position calls on, we are reducing productivity.  You ask an employee to retrieve a file for a project but to do so means they have to go to the other side of the building. A client send a fax to your department but the person who is supposed to receive it can't verify that it arrived without leaving his/her desk and going to the mail room. Every time you waste time by not having the materials needed to complete tasks right at their finger tips you are creating waste for your organization.

 The second example of waste within your HR department is when you produce either hard copy forms or online forms with items that are illegal in nature. When we spent some time seeking a full time human resources position we observed questions on application in example which were either against the law or had no bearing on a Bona Fide Occupational Qualification. We are talking about questions such as date of birth, date the candidate graduated form high school. Probably the most out of the box question was an application that contained a mandatory yes or no response to the question "Are You a Visible Minority." These types of questions create waste due to the fact that you can't utilize them in your hiring decisions so why ask them. Have you ever sent out offer letters with wrong start dates or compensation information? Have you ever sent out letters or documents which were critical for the completion of a project only to get them questioned because of misspellings?

 Waste or Muda #8: Unused Employee Potential

The United Negro Fun for years ran a commercial in which the tag line was it was a shame to waste a mind. In this age when our employees are corporate assets,to place them in a position where their full potential is not utilized jeopardizes the organization and is waste to the operation. We do this by not planning our staffing needs correctly. If we hire too much or we have processes that have to wait on a previous step, then we have employees sitting idle and spinning their wheels until they have what they need to continue. We also introduce waste to the human resource process when we under staff the operations leading to  work overload which leads to less than maximum productivity because the employees can not possible get everything done which leads to shortcuts which leads to the potential for defects in the output.

Waste or Muds #9: Material Underutilization

Every day we produce materials out of our processes which end up nowhere. When was the last time you received an e-mail and just to make sure that you did not lose it, you printed a copy?  When was the last time you were printing a 3x5 postcard and you only put two on a page instead of four? When was the last time you scheduled a tele-conference only to have a person who was supposed to be in attendance show up 15 minutes late? What do you do with the information generated by your department? Each of these lead to process waste because the results of the above examples are non-value added steps in a process.

To this point we have provided you with a macro view of the wastes that can appear within your processes. Every organization is guilty of these non-value added steps to one degree or another. The last part of this series will take the HRCI Body of Knowledge and suggest to you solutions that you can use to eliminate the types of waste that we have discussed to this point in this series. we hope that we have at least gotten you to begin to look at your own specific HR processes and considered where you are wasting non-productive time within those processes.

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Just when you thought you had a handle on social media issues

I opened my email to see a post from fellow blogger, Steve Boese (http://steveboese.squarespace.com/joural). It provided a new twist to the HR concerns with the use of social media in the workplace.

Freedom of Choice in Workplace Technology

Posted: 21 Apr 2011 05:21 AM PDT

There is a growing technology trend in workplaces both large and small called 'Bring Your Own Device', sometimes abbreviated as BYOD. Bring Your Own Device simply means that organizational IT departments are allowing individual employees to use their personal or preferred 'devices', (smartphones, tablets, laptops), to access the corporate systems and tools they need to accomplish their work.

BYOD, while certainly more complex for centralized IT teams to support and administer, is an admission and realization that often an individual's attachment and bond to their personal productivity tools is so powerful, that forcing them to adapt and adopt to the corporate footprint is counter-productive and even deflating.  Think about it, if you hire a new sales executive, that has years of his or her industry and corporate contacts resident on their iPhone, or saved to a cloud-based service they access via an Android app, does it really make sense to hand them a new BlackBerry and tell them to 'deal with it, because that is what we support.'

Proponents of BYOD will contend that allowing employees to bring their own devices can reduce training costs as well as the amount of IT support calls on an ongoing basis. Despite supporting 'more' devices, the argument is that each employee already knows how t use and manage their preferred device. As in the example of the new sales rep above, not having to transition from a device and set of tools to a new 'official' platform, can make employees more productive, and reduce time to achieve desired performance levels. Finally, they make employees happier. People LOVE their iPhones, Androids, iPads, whatever. Making them break those ties when they come to the office is painful for many.

The arguments against BYOD typically center around data security, lack of resources to deploy and support a myriad of devices and platforms, and cultural drivers that tend to resist the kind of openness and freedom that BYOD programs foster.  But it does seem likely that as we see the major shift in consumer preferences towards iPhones, iPads, and Android devices; and away from the traditional enterprise deployments of BlackBerries and Microsoft-based PCs, that progressive organizations and IT leaders will simply have to embrace these shifts, and figure out a way to support what their employees really want, while balancing their need to maintain IP and data security.

Recently Clorox, an 8,300 person strong maker of consumer cleaning products adopted a kind of modified BYOD program, by offering its workers a choice of corporate-supported smartphone. Previously, BlackBerry had been the corporate standard. Workers could choose from iPhone, Android, or a Windows7 device. The result - "the company has issued 2,000 smartphones, 92% of which are iPhones. About 6% of the smartphones chosen were Android-based while 2% were Windows Phone 7 devices."

This isn't a knock on BlackBerry, I personally am a happy BlackBerry user, but rather an observation that prior to having a choice of device, almost all of the employees at Clorox were not happy with the 'provided' device, and given the opportunity to move to something more aligned with their preferences, they jumped at the chance. Clorox didn't make this decision to be nice or kind to staff, they balanced the value of the increased effectiveness and engagement of staff against the cost to procure and support the suite of devices and have determined that rather than being a perk to employees, it is simply just a good business decision.

I think we will see more BYOD programs taking hold in the coming years as new entrants to the workforce carry in their tools and preferences and expect them to be supported in the workplace.

I wonder if the next trend might be BYOHRT, Bring your own HR Technology? What might that look like?

Thank you Steve for your input to the dialogue

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In Plain Sight: Hidden Wastes which affect the viability of your HR organization Part 3

In the previous part to this series we began to look at the various types of wastes which could be hidden within your organization. In part 3 we continue that review with a look at the next three types of wastes.

Waste or Muda #4: Waiting

Waiting of any kind means that the process has slowed down. Maybe even stopped. When we make the customer wait for something we have created waste. Waiting can take many different shapes within our organizations.

The IT Manager tells the HR manager that he/she needs that new analyst in three days and now we are looking at 3 months and you are no closer to filling that position then you were when the IT manager said he need the person in critical fashion.

Your organization's policy is that all job requisitions must go through the HR manager before a recruiter can begin sourcing the position. The HR Manager due to their workload forgets to give the job requisition to the recruiter for 72 hours. That becomes 72 man hours of wasted effort.

Voice of the customer is critical in seeking out the needs of the customer. So when a department manager tells HR they need certain metrics to complete a project, then that is what they expect. HR decides that in order to make sure that the manager has everything develops reports that provide the information requested and then some. The result is that the manager has to delay their report because they have to get through the noise before finding exactly what they need,

Waiting can also occur when HR sets up interviews at the wrong date and time or the offer includes the wrong salary information.meaning until the errors are corrected the new hire can not start in the new position.

Waste or Muda #5: Over production

Have you ever heard of the term "overkill?" This area of the non-value activities is the optimum of overkill, overproduction can be found in everything we in HR do. You ask a recruiting source for their best 5 candidates and they send you 20. The department manager asked for a spreadsheet showing the past month's recruiting results and they are sent the past quarters results.Another example is when the department manager requests a report for a specific piece of data so the HR department send them the report every month. In that same scenario, the department manager asks for a specific report on a specific metric and HR prepares the report and also send along the various accompanying support data.

Waste or Muda #6: Overprocessing

As you go shopping tonight or try and call customer service, look around and see how many steps it takes to get you to where you want to be. You call customer service for your favorite store and go through call hell as you are asked to push this number on your phone to continue the process. The other night for instance I called the customer service number for a book store and the CSR was refusing to help because their records said that the credit card number on the account was not the number we have been using to order titles, so she would not let me talk to a supervisor.

Overprocessing can occur when you respond to a hiring manager's request and not really understanding the real needs or wants of the customer. The result is that you deliver something to the hiring manager and because it is the wrong information, the system bogs down until you deliver the right metrics.

Ever look at your recruiting process in detail. HR sources, screens, recruits and interviews potential candidates and refers the best candidates to the hiring manager. That is the way the system is supposed to work, Then comes the hiring manager who states that they want to see all the resumes and re-screens the candidates and schedules interviews just like the HR department already has done.

Non-value added actions are never a good thing for the organization, but as the next three waste types have shown they can especially be detrimental to your HR strategy. In the next part of the series we will look at the final three types of wastes and what they mean for the HR function. The last part of the series will look at possible solutions to remove these wastes from your processes.

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In Plain Sight: Hidden Wastes which affect the viability of your HR organization Part 2

In Part 1 of this series we discussed the fact that every process has non-value added activities as part of the process. They are there because we have not looked for them and in order to be part of the solution we need to begin to look at our organization with the sole purpose in mind to locate, identify and remove the obstacles to us operating our organizations faster, better and cheaper.

If we talk to many of those who operate in the quality space they will identify nine specific types of wastes that occur in every organization. Part 2 will examine the first three of these waste definitions,

Waste or Muda #1: Transportation

Typically when we think of transportation we are concerned with moving people or materials from one place to another. In this case we are more concerned with the movement within your organization. Take a look around your office space or if you are in manufacturing look at your shop floor. Where does an employee have to go to get their required materials to complete a task? Can they turn around and pick up the item or do they need to go across the building to get what they need? Do you move the same piece of equipment multiple times to get it to where it is needed? Do you meet the needs of your customers or do you get a request for some data and what you send the client far exceeds what they asked for?

Waste or Muda #2: Inventory

We as humans and organizations have a tendency to think that we are pack rats. We consistently order what we think we will need for a specific time period even if we know we are more than likely going to change to a different form or model in a short period of time.  You create a new form and instead of ordering what the process tells you will be needed for say 6 months, you order two years worth of forms. When you change the form the excess gets added to the trash.  You maintain on hand permanent job requisitions for every position within the organization whether a hiring manager tells you it is needed or not.I know we don't need that job requisition now but we MAY at some time in the future. Your hiring manager calls you and tells you he needs a critical position filled within 3 days and due to department processes the recruiter does not get the position request for 48 hours. What happened to the voice of the customer?

Waste or Muda #3: Motion

Ever take a pedometer to work and see how far you walk in a day? How many steps do you take that repeat previous steps in order to complete a task? You are given an assignment to produce a report for senior management and in order to get it to the right place nine sets of hands touch the document instead of sending it directly to the manager who requested the report in the first place. I have a friend whose employer moved her desk from the second floor to the first. No big deal right. However they left all of her files on the second floor. By the time she walks the entire length of the building, goes up to the second floor and retrieves the file that is needed and returns to her desk, the organization has lost 25 minutes of productivity. If she makes that trip four times a day, the organization has lost the equivalent of 433 man hours per year. If we assume that she is being paid $15.00 per hour, that lost productivity has cost the organization almost $7000 annually in lost productive activities. Another common occurrence, in this area is the scenario where the management asks for a report and the HR staff throws all the numbers together and for what ever reason the report never leaves your department - the manager says after you complete the report that they don't need it after all or for some reason they report never gets delivered to the client.

These categories of waste and the others to follow, add costs to your operations, They jeopardize the future of your organization. What is obvious when you begin to explore these wastes is that they have been there all along, you just did not see them. Really look at these types of wastes and see how many of them exist in your organization and the affect on the organization because of them.

Part 3 and 4 will look at the remainder of the Muda types and what they do to the organization. Part 4 will return to this area and look at solutions for removing wastes from your HR process and the organization as a whole.

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In Plain Sight: Hidden Wastes which affect the viability of your organization Part 1

As individuals we all strive for perfection to some degree. Our organizations are no different. The goal of many organizations is to be the best at what they do. The problem is that we are so set in our ways that there obstacles presented to us that stop this effort in its tracks.

In the title to this post we discussed hidden wastes., These wastes which are in every process that your organization undertakes are there for one reason and one reason only. You have never looked for them.

Let me begin with a brief scenario to which I would ask you think very carefully on your answer. I am not concerned whether it is on a monthly , quarterly or annual basis, however your financial people have just handed you the financial reports on how your department is performing. Here is my challenge to you:

What do you do with the reports?

Many people to whom we have posed the question to respond by we check the numbers.What are you checking the numbers for? Do you look at the numbers to see if they are calculated correctly? or Do you look at the numbers to see where they came from? Your response tells us whether you are part of the problem or part of the solution.

We would suggest that instead of just checking the numbers to make sure the numbers are correct, approach the process with the utilization of a series of why questions. The purpose is to identify why we do things the way we do. Typically when you ask the question why the response is usually because that is the way we have always done it. So ask why again. This time the answer will change to because John Smith many years ago decided that this was the way we should do something. So why again.

The third why usually leads to a response like they heard it at a seminar or the owner of the company suggesting it. The course usually extends out to five whys which will at the end lead you to the real reason why you do something. It is the first step in uncovering wastes within your organization.

Our goal in doing this is to run our human resources processes faster (leaner), cheaper ( at less cost) and better (with less errors). We achieve this by introducing the six-sigma methodology to your transactional services. Our goal is to continuously improve the transactional services and process quality, getting the services to the customer faster, and reducing costs while improving the price to the customer.

The question is who are our customers? In order to achieve this process improvement our customers include both internal ( hiring managers, upper management, stakeholders) and external (recruiters, sourcing professionals,social media).

 Part 2 of this post will look at the nine types of waste or muda and some examples of how they can affect your organization.

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Did you here we threw a party and someone forgot to turn onthe lights?

Many of us spent the last week keeping an eye on the happenings in Washington with the threatened shutdown of the government as of last night at midnight. No matter which side of the political spectrum you are on, we understand that the government overspends. But we can take the discussions in Washington and carry it over to our business environment.

One of the difficulties of the discussions this past week were that they centered around a number and gave no concern to the underlying environment. We have done the same thing during these tough economic times. Organizations cut for the sake of cutting. They never looked at the after affects on the organization of the decisions. We can't dispute that organizations are reporting that they are more productive now then they have ever been. But at what cost? Workloads have increased. Stress levels have increased. When you add stress to the equation the organization's health care costs go up.Management operates under the premise that when the economy turns around they can just go out and hire another commodity. I truly believe that they are going to be in for a rude awakening when the talent shortage rears its head once again.

The reason behind this change is that organizations have begun to look at their human capital assets as commodities. When you make the change from viewing employees as commodities rather than a live person, your decision basis changes. You no longer take into consideration how your decisions affect the work/life balance of your employees. You no longer take into consideration the needs of the employees to create an environment where they they are becoming engaged with your organization. Recent surveys have suggested that as many as 85% of your current staff is considering jumping to new employment opportunities when the economy improves. Are you ready to deal with that mass exodus?

It is not too late to change your perspective. Remember that if you implement continuous process improvement tools you can add to the bottom line by removing non-value added activities. When you look at your human capital as expendable you will never look at them in any way as a commodity. James Womack in this book Lean Thinking, says that unless you are ready to close the doors of the business there is never a reason to conduct large scale layoffs as we have seen during this past economic downturn.

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Corporate Mobility Benchmarking

CNN Money.com is reporting that JPMorgan forked over $421,458 last year to compensate the CEO for moving costs incurred as he moved his family from Chicago to New York. Yes, moving is hell, but you don't know the half of it. This is the second time in three years that the bank picked up a six-figure sum for the CEO's relocation – which ended up taking five costly years from end to end. The bank has kicked in $617,734 since 2008 to cover the move.

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Recruiters, are you really servicing your clients?

I can hear some of you saying what do you mean “are we really serving your client?” Of course we are, otherwise we would not still be in business. In response I would ask when was the last time you asked your client what they really needed. When was the last time you took the time to sit down and really listen to what the needs of their organizations are?

The focus of this white paper, number seven in the DBAI White Paper Series, is a look at the question of whether you as recruiters are really serving your clients to the ultimate level that you can. Are you really earning the fees you collect for your services? Are you ethically performing what you think the client is asking for in return? When does your responsibility as a recruiter really end?

We have seen many changes occur in the global workplace over the past several decades. Unemployment has been on a roller coaster ranging from very low to record heights. A question of loyalty to our organizations on the part of our human capital assets has been paramount in many businesses. We have also seen an increase in the number of employees jumping to new opportunities because it looks good in their portfolio of skills. We fully cognizant of the fact that as time goes by, things will change.

Read any number of professional journals within the organizational environment – from CFO to HR magazine- one continuing theme is that C-level executives are having trouble sleeping at night over the concerns as to where the talent of the future will come from. They are concerned with locating the right person for the right position at the right time and in the right location. This does not mean ruling candidates out, it means finding attributes among possible talent that can enhance the organization.

In 1973, Allan Cox wrote a classic work entitled “Confessions of a Corporate Headhunter” which laid out the entire process of sourcing, recruiting, referring and collaborating on the hiring of new executive talent. Mr. Cox was an executive with one of the largest retained search firms in the country. In his book he defined your role as that of a mediator between executives who don’t understand their problems and candidates who are out for the fast buck. Assuming Mr. Cox is correct in his views the techniques and resources that are used may have changed, but your primary function has not. As an executive recruiter you are charged with the responsibility to assist your clients in locating, reviewing, and selecting the best possible candidate for the client’s talent capital vacancies. One aspect of this process should be ensuring that both the client and the candidate are well informed as to the total picture of the process. The only party to the process that can readily inform the parties is the recruiter.

We have talked to many recruiters who tell me that despite the definition above, all they do is receive the position requisition and send over the most likely candidate. We do not dispute the intention, however when you confine yourself to a narrow perspective, you have not assisted your client in finding the best person for the job.

Consider these real life examples,

• Where a recruiter made the statement that she would never send on to a client any candidate with grey hair.
• Sony Ericcson and others made it clear to the workplace that if you were unemployed you should not waste their time by applying for the position.
• Recruiters who are set in their silo that they won’t look at functional resumes which better describe the breadth of experiences that they have.

Your client has a problem. They have an open position in their ranks that is costing them dollars. Remaining staff must make up the workload. They are incurring the costs of recruiting new talent. The difficulty maybe that they may not understand what their problem is. You as the recruitment specialist are the route to solve their problem but only if you have a clear idea of what the problem is.

Having been on both sides of the desk we would suggest that to better serve your client you need to change your perspective on your role by following the strategies below:

Strategy 1: Stop playing the game of musical chairs

As children, we all have at one time or another attended the birthday party of a friend where the height of the party was the game of musical chairs. While it was a party standard, it also got old fast as the number of players dwindled. Here you are years later and you are still playing the party game. The difference now is you are not playing based on music but just moving people from place to place with no regard to where it all ends. Take Mary Smith from ABC Corporation and place her in ABD Corporation. Move John Smith from XYZ Corporation and put him in Mary’s position at ABC Corporation. Eventually you will run out of people to move. Whether you want to or not eventually you will have to take talent from one client to fill a position in another one. Where is your sense of ethics regarding your clients?

Strategy 2: Become a true partner with your clients

You receive a call from a client regarding the need for an executive. What you do next determines whether you are service provider or a true partner. Using the tools of the voice of the customer you need to get a complete picture of the needs of your client. Do not settle for a preliminary picture of the need. Work with your client to understand why the position is really open. Understand why they are going in a certain direction. Do not be afraid to question why a decision was made. As we suggested earlier it is time for you to sit down with your client and understand what the expectations of your clients are regarding the open position.

Strategy 3: Recognize the value a candidate brings to the picture

Every person has their own attributes that they bring to the table. As we have moved deeper into the information age, the candidate’s knowledge skills are more important than where he/she has worked. You have taken the time to really understand the needs of your client. Look for the skills that will solve the problem. Take the time to match candidates to positions based on those skills, not some assumed picture of what you think the client wants.

Strategy 4: Don’t stereotype your candidates

In line with the strategy above, each candidate brings a unique mix of experiences to the table. Eliminate from your vocabulary any decision based on pre-conceived thoughts. Just because a candidate has grey hair, doesn’t mean they are past their prime. Just because someone has lost their source of employment during hard economic times does not mean that their skills are no longer of any value to the workplace. Just because a candidate has not remained with one or two corporations for their entire work career does not mean they have lost the skills that your client needs.

Strategy 5: Be willing to take a certain level of risk

You need to determine whether you are a paper pusher or true consultant. Be willing to explain the business case why a particular candidate is the one to solve your client’s problem. Do not settle for working within the narrow view that your client might be imposing. Remember that if you don’t ask the why questions you may not have the real needs that the organization has.

Strategy 6: Gain a sense of ethics

By no means am I lumping every recruiter in this fishbowl but a fair number of recruiters have begun to tell candidates that before they apply for a position they should call the recruiter in order to see if the recruiter has a contact at that employer. Many use this as a source of leads for open positions. Think about how you would feel if someone used you in the same manner.

Strategy 7: Be prepared to present the cost benefits of talent acquisition

Be aware of the cost of various scenarios in the hiring process. In the long run it might be more cost beneficial to offer mobility services then to hire someone, have them stay two months and then have to go through the hiring process all over again. The common assumption is that if you hire someone and they leave within the first year it will cost your client 175 percent of the annual salary to replace, train and get the replacement up to full productivity.

We have tried to present the business case for a new model for the recruitment industry centered around the voice of the customer and understanding the true needs of your client. Your pursuit of this changed model determines whether you are a paper pusher or a true partner with your clients to place the right person in the right place, in the right position, at the right time. Whether you positively respond to the opening question depends totally on how close you come to completing the strategies we have outlined. We totally understand that our suggestions are not human nature as you operate today. Only you can understand how important serving your client’s needs are to your organization and your career.

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Changes from the Healthcare Law

Both the House and the Senate have passed legislation and sent on to the President a repeal of the provision in the Healthcare Law that would have required 1099's be issued to all vendors paid over $600. While the intent was good to make up for lost revenue to the coffers of the country, it would have been a nightmare for businesses during the operation of their businesses.

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New ADAAA regs: the untold story!!!

The law firm of Constangy, Brooks and Smith posted this discussion about the new ADAA regulations rules released by the EEOC.

As most people in the Human Resources and employment-law worlds are aware, the U.S. Equal Employment Opportunity Commission recently issued its final rule interpreting the Americans with Disabilities Act Amendments Act.

The ADAAA, which took effect in January 2009, was enacted toward the end of the administration of George W. Bush, with the support of disability rights advocates as well as the U.S. Chamber of Commerce and the Society for Human Resources Management (both of whom were trying to head off a version that would have been worse for employers). The ADAAA dramatically expands the population that is considered "disabled" within the meaning of the ADA but does not change the ADA's provisions on, for example, reasonable accommodation, medical examinations, or confidentiality.

There has been a lot of commentary about the new regulations, but here are some points that I have not seen anywhere else:

1. The 40-or-so pages of dense preamble and regulations, and the EEOC's "Interpretive Guidance," can be summarized in one sentence, as follows: It is now unlawful to discriminate, not just against individuals with "disabilities," but against anyone because of a medical condition, whether actual, past, or perceived. (Please note that "medical condition" also includes mental/psychiatric conditions and learning disabilities.) The only exceptions might be, for example, a person suffering from the common cold or the flu, or someone who wears eyeglasses or contact lenses. But not necessarily. The new definition of "disabilities" in the ADAAA is as loosey-goosey as the definition of "serious health condition" in the Family and Medical Leave Act. 

2. Individuals who are "regarded as" being only impaired are protected. The only perceived "impairments" that don't count are those that are both transitory (duration of less than six months) and minor. Because it's going to be so easy to qualify, the EEOC is actively encouraging individuals to always sue under the "regarded as" prong as long as they aren't challenging an employer's failure to provide a reasonable accommodation. (For obvious reasons, reasonable accommodations do not have to be provided to individuals who are only "regarded as" being impaired, so an individual seeking a reasonable accommodation would have to establish either an actual "disability" or a record of a "disability.")

3. Thanks (but no thanks) to this law, I expect to see some class action lawsuits alleging ADAAA violations in connection with post-offer medical examinations and terminations at the end of extended medical leaves of absence. Under the prior version of the ADA, these cases were normally unsuccessful as class actions because an individualized analysis was required to determine who could be a member of the class (that is, who was "disabled"). But now that the determination of who is "disabled" is virtually automatic, disability discrimination cases will be more susceptible of class treatment.

4. Most ADA case law on who is "disabled" is no good any longer. The ADAAA explicitly overruled some excellent Supreme Court decisions, including Sutton v. United Air Lines (1999) and Williams v. Toyota Manufacturing of Kentucky (2002). However, our court system is slow, and so we are still seeing ADA decisions that take a restrictive view of who is "disabled." This is nothing to be excited about, unfortunately. Be sure to read the fine print: If the facts alleged in the case occurred before January 1, 2009, then the court is applying the old ADA, which really was a pretty good and reasonable law. (On the other hand, if you see a pro-employer decision based on facts that occurred after January 1, 2009, then you may have reason to open a bottle of champagne.)

So, what should an employer do to comply with the ADAAA?

*Always assume that everyone has an ADAAA "disability." You will be right 99.9 percent of the time, and the rest of the time you'll be erring on the right side.

*Brush up, if you need to, on your legal obligations concerning reasonable accommodations. You will have to consider reasonable accommodations in many more cases than you did in the past. 

*If you think a "medical condition" disqualifies a person from performing the job, go through the full-blown ADA/reasonable accommodation analysis. If you think you will be unable to accommodate, consult with counsel before making any irreversible decisions.

*If you require post-offer medical screening, review what you are doing and make sure that your medical department (or outside physician) is not automatically rejecting everyone who has certain conditions. All medical rejection decisions should be considered "preliminary" until they have been reviewed and approved by someone in Human Resources and/or a lawyer. (This may require the offeree to sign a HIPAA authorization that will allow the medical department to share relevant information with HR/Legal.)

*Review your medical leave/termination policies and practices, and be especially on the lookout for any provisions that seem to call for "automatic" termination without an individualized assessment or consideration of reasonable accommodation options.

*Make sure your "paws" know the laws. Now that we have the potential for cat's paw liability, be sure that your front-line supervisors and other managers know at least that the ADA has been amended and that it will cover significantly more people than before.

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Can you answer "YES" toe ach of these questions?

Do you have a seat at the planning table?
Do you know your total business operation?
Do you know how to improve your processes for positive results?
Can you make the cost ratio presentation on your human capital processes?

Everytime I attend a HR conference a recurring theme I hear is that HR needs to learn the language of business in order to continue to be a thriving part of your organization now and in the future. So, just what does that mean? Either by design or just evolution many departments within our organizations have become silos or islands unto themselves. The problem is that when we do this we lose the grasp ont he bigger picture --our organization. Some of you are probably already saying but this does not apply to me or our department. However if you turn to the writings of Dave Ulrich (HR Transformation) he will explain to you that this is a dangerous way to go.

The business world we liv ein changes on a daily basis, The new world calls for us to be proactive not reactive to events in the workplace. It calls for us to function as part of cross-functional approaches to our trials and tribulations. Mikel and Schroeder in their work "Breakthrough Management" suggest that we don't know what we don't know and if we don;t know what it is that is causing the problems then we can't act on the solutions.

Manufacturing for years has used the six-sigma methodology to improve their processes. These same tools can be used highly successfully in the transactional world where HR resides.The methodology will enable you to know your total business. It will enable you to observe the problems in your processes. We are not asking oyu to use it to lower your FTE levels, this is not about pointing blame on an employee and saying this is the solution (although in some casses it might) but six sigma suggests the problem lies within your process.

Corporations like GE Healthcare, Cummins Engine, XCek Ebergy, IBM and others have seen the benefits of the six sigma approach and have used it to great improvement on the bottom line.

So, do you wat to answer yes to these five questions? Check with your local insitutions of higher education and see if they offer six sigma training and bite the bullet and enroll to learn the ins and outs of how it works, It will literally be the first day of the rest of your career, if you have one going forward.

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I am so Sorry

I placed a call to a friend on her birthday and during our phoen conversation she asked me for my opinion on a situation she is involved with. It seems that a large national big box store has made the decision that it makes business ssnese to provide spanish lessons to all their exempt and non-exempt employees. During this training program they are shown a video in which one of the actors who is made out to be a WASP in appearance as possible, turns to a customer who is of hispanic descent and says " I am sorry that I do not speak your language,"

The causasian employees and the jamaican employees are highly offended at the scenario and have made their views known to management. In one north American city, the employees have been approached by spanish speaking customers who have said if you do not learn my language you are out of a job.

Diversity initiatives are vital to organizations in this global workplace that we find ourselves in, but is it really necessary in the name of diviersity to alientate the rest of the workforce. I would suggest not. In most deveoped countries of the world, English is the language of business and whether we are speaking about diversity of language training it serves no purpose to the organization as a whole to satisfy one block at the expense of another.

I am not suggesting that learning a second language is an adverse thing in any means. I wish I could do so myself. I took two semesters of spanish in college and do not remember any of it. But when in Rome do what the Romans do, and leanr the language of hte workplace. It hinders our organizations when we try to force feed one way of doing things on the rest of the workforce.Instead of trying to change everyone in to a fluent spanish speaking employee make sure that you have employees on staff who do and can be referred to when a fellow employee has a language problem with a client.

What are your thoughts?

Posted via email from hrstrategist@Net-Speed