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HR Leadership Column

Bad Facts Make Bad Law

The governing party in Washington may change but the tendency to pass new laws that place undue burdens on HR leaders never seems to change. The latest potential legislation would give unemployed workers rights under Title VII of the Civil Rights Act.

Monday, June 13, 2011
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I've spent most of my career working in and around the nation's capital. I've seen the House, Senate and White House change party control many times, and the politics of the town get ever-more partisan.

But with all that has changed, one thing that hasn't is a pattern that repeats itself regularly. It's a pattern of events that leads up to enactment of a new law, regulations to implement the new law and employers scrambling to figure out how to comply with a new mandate they think is really unnecessary.

What's the pattern? Bad facts make bad law.

Here's what happens. Someone working for an employer has a bright idea that they think will save money or improve the company's competitive position. So they implement the idea, which turns out to be just plain stupid. (With apologies to my mother's memory, since she taught me it wasn't nice to call anyone stupid.)

When the public or special-interest groups find out about the stupid idea, they react negatively, and push for legislation to ensure that no other employer can ever have the same idea. In other words, they seek legislation to address the lowest common denominator -- and good employers that would never do anything so stupid are saddled with a new law guaranteeing this fact.

An example of this, in my mind, is federal legislation passed a few years ago that makes it illegal to discriminate in employment based on genetic information.

I've never met an HR professional who wanted to collect or know about someone's genetic information. The legislation was, in large part, precipitated by a railroad company that decided to conduct genetic tests on its employees without their informed consent, as a means of counteracting workers' compensation claims for job-related stress injuries.

Cost control is certainly a worthy goal, but use of genetic tests was also certainly a stupid idea.

This case, combined with progress being made on mapping the human genome, ultimately resulted in enactment of the Genetic Information Nondiscrimination Act.

The vote in favor was pretty one- sided. And employers didn't put up a big fight about it, because who really wants to say it's OK for employers to collect genetic information about their employees?

Employers did, however, voice concerns the bill would do little to rectify inconsistent state laws and might increase frivolous litigation and/or punitive damages as a result of ambiguous record-keeping and other technical requirements.

Bad facts, bad law.

But the purpose of this column isn't to revisit GINA. It's to suggest that HR leaders have an obligation to ensure that their employment practices don't lead to bad facts, and therefore bad laws. And I'm particularly concerned about a practice I've been reading about in the press that may repeat the pattern.

Last month, Time magazine reported on "Jobless Discrimination? When Firms Won't Even Consider Hiring Anyone Unemployed."

The article reported an incident that happened last year, when contract recruiters working for Sony Ericsson posted "No unemployed candidates will be considered at all" on an online job listing. Sony Ericsson said the listing was a mistake and pulled the listing, but here we are, more than a year later, reading about the incident once again.

I'm confident that experienced HR pros had the same reaction I did when I read the listing: Boy, that's a stupid idea. Why on earth would you eliminate a whole class of potential candidates from your recruiting efforts on such an arbitrary basis?

And why do it in the midst of the worst recession in decades, when there's a lot of great talent looking for work? Why assume that someone unemployed will have rusty skills, when they may have been using their spare time to up-skill their resume?

If, faced with a hiring manager who assumes someone unemployed would be too rusty to do the job, HR should take the opportunity to educate the manager, and remind them that it makes good business sense to look at the candidate, whether employed or unemployed, to determine if they're a fit.

If you don't, you risk missing out on a great candidate who could help the company succeed.

But, remember the pattern of bad facts make bad laws? Beginning on June 1, 2011, a new law goes into effect in New Jersey prohibiting employers from discriminating against the unemployed in job advertisements.

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Under the new law, job postings can't say that current employment is a job qualification, that currently unemployed candidates will not be considered or that only currently employed job applicants will be considered. Hopefully, since few, if any, HR professionals post such ads, this shouldn't be a difficult law to comply with.

At the federal level, the U.S. Equal Employment Opportunity Commission held a hearing on the issue where it heard mixed messages. Some said it was not common to exclude the unemployed from consideration; others shared anecdotal evidence of qualified but unemployed people being unsuccessful in their job search. (HREOnlineTM wrote about the issue here.)

In the U.S. House of Representatives, Rep. Hank Johnson, D-Ga., introduced the "Fair Employment Act of 2011," which would amend Title VII to add "unemployment status" to those protected by the law.

"Unemployment status" would mean "being unemployed, having actively looked for employment during the then most recent 4-week period, and currently being available for employment." So far, the bill has 48 co-sponsors.

Consider the impact if unemployed candidates become a protected class: HR leaders who have always recognized the value of considering qualified candidates, whether employed or unemployed, would face greater risk of litigation under Title VII each time they consider, and reject, a candidate who just happens to be currently unemployed.

Remember. Bad facts make bad law. Are you excluding the unemployed from your applicant pool?

Susan R. Meisinger, former president and CEO of the Society for Human Resource Management, is an author, speaker and consultant on human resource management. She is on the board of directors of the National Academy of Human Resources.

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