The U.S. Equal Employment Opportunity Commission (EEOC) last week announced that 93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year (FY) 2009, the second highest level ever, and monetary relief obtained for victims totaled over $376 million. The total number of charges was actually more than 2,000 fewer than in FY 2009, a record-setting year.

Race, sex, and retaliation claims were the leading charges filed. The number of retaliation charges (charges that the employer has taken punitive action against an employee for taking some legally protected action) has increased by 50% in the last five years.

The comprehensive enforcement and litigation statistics for FY 2009, which ended Sept. 30, 2009, are posted on the agency’s web site at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

Now might be a good time to revisit your supervisor training and your employment practice liability insurance limits.

The Wall Street Journal ran an article today titled More Job Seekers Scramble To Erase Their Criminal Past discussing how job seekers are seeking to legally delete their criminal records for minor offenses.

Though written from the job seeker's point of view, the article does a fair job of highlighting the increasing flexibility by legislatures and courts to erase or limit the use by employers of "minor" criminal offenses. There was, however, one significant error by the author related to the legal use of criminal records.

The heat continues to rise on employers who use credit reports in making hiring decisions. 

Workforce Management just ran a piece about stepped up EEOC enforcement actions against employers who use credit reports in a manner that adversely impacts protected classes.

Josh LeTourneau, one of the bloggers at Fistful of Talent, did a great job of arguing against the indiscriminate use of credit reports in an article posted today.

When I was on the HR manager side of the desk, I was always dubious of using credit as a predictor of dishonesty. Now, after more than a decade as the owner of a background investigations firm, I routinely try to dissuade clients from even looking at applicants' or employees' credit reports. In many cases, I've just refused to sell the reports to employers who I believed were going to use them unwisely.

I have yet to see a study that correlates bad credit and dishonesty.

Like so-called "national" criminal records and other database-based screening products, credit reports are instant, relatively inexpensive, and easy to sell. They are also full of information that is often neither job-relevant or accurate. The problem is that too many HR folks aren't educated by their screening partners in the appropriate use of these and other selection tools (personality assesments come to mind).

While we would all like to have perfect employees without any financial. personal, or professional blemish, they don't exist. Employers who paint candidates with less than ideal credit or a criminal history with a broad brush will often miss opportunities to add qualified and committed employees to their organizations.

Smart employers have a plan on how they will evaluate any screening results before they ever order the background check. They make sure the criteria is job-related and that there is a clear business-necessity for any adverse decisions that may be made. That will help keep you out of court and help you build a competitive workforce.

Last Friday, I attended the TCU Neely School of Business' conference on business uses of social media. It was a great event that included a speaker from LinkedIn, Hubspot, SABRE Holding's Cubeless team, and Handango, as well as authors of recent books on Twitter and Facebook.

Using LinkedIn and Facebook for recruiting candidates was a hot topic, especially given the fat-free diets many recruiting departments are on these days. A couple mentions were also made with regard to using social media sites to background check applicants (executive summary: a bad idea... read on).

Worforce Management published an article last week on the same topic. In that article, my friend Pam Devata, an partner in Seyfarth Shaw's Chicago office, points out:

"Sourcing from professional network sites such as LinkedIn carries a risk that the method could be challenged on discrimination grounds,” Devata says. “It represents a hiring pool that is not open to the general population. Using a limited network may have a disparate impact. If hiring through these networks can be challenged, it will be."

Notice that Pam doesn't say "don't use LinkedIn to recruit." She simply points out that there is a disparate impact risk in limiting your recruiting tools. Lawyers from other firms make similar observations and advise against using the social media websites as background checking tools. All great advice.

So, I was surprised when one of my favorite HR bloggers, Kris Dunn at Fistful of Talent, responded with an article called 'Hey Employment Law "Experts", You're Killing My Profession.'  Kris isn't having any of it and argues risk-averse HR departments may take such advice as gospel to their own detriment. Jessica Lee had a similar but more gentle response. I agree that there is a risk there but at the same time I believe that there is a bigger risk of using social media as a recruiting or background screening tool without first evaluating it's place in the larger legal and talent management framework.

My response to Kris's article at the FOT website follows:

Anyone who has been through an OFCCP audit or defended an employment discrimination claim recognizes that the advice in the Workforce Management article is on target. On the flip side, though, I agree that too many HR departments are too-risk averse and take legal cautions as gospel.

The government and juries will look at the composition of your applicant pool and your outreach efforts to traditionally disenfranchised populations. You'd better be ready to defend your practices, whatever they are. Identifying and sourcing candidates through social media is great IF your pool of candidates is sufficiently diverse. If not, you better be reaching out to other recruitment sources (ethnic chambers of commerce, traditionally-minority institutions, groups assisting older workers or veterans transition to new jobs, etc.) to at least try to identify qualified candidates. Otherwise, you are painting a target on your back - not to mention potentially excluding some extremely qualified candidates to whom you may not have been exposed otherwise. But by all means, use social media (particularly professionally-orient social media like LinkedIn) to identify potential candidates.

Once an individual has formally expressed interest in a position (ugh, the old quandry about when in your organization an interested party becomes an applicant) the use of social media should be extremely cautious. Using a candidate's personal blog or facebook page to evaluate their freak-factor is lazy and would be hard to defend against discrimination claims. The EEOC's E-RACE initiative is targeting these sorts of unvalidated selection procedures.

I'm told that LinkedIn's Recruiter platform has a means of eliminating photos and other potentially discriminatory information from information received by recruiters. That's smart. It protects the recruiter from claims of bias (intentional or unintentional).

And while the FOT authors are very professional and deliberative recruiters who will do whatever is necessary to land the best talent for their firms, I've known some recruiters and many hiring managers for whom the first impression is as far as they ever get. If that first impression is a five-year-old picture of the candidate doing something stupid in college posted on flickr.com or tweetpic by someone else, that otherwise qualified candidate is out of the game and everyone loses.

The best advice I have for employers who believe that their employees’ online presence is job-relevant, need-to-know information is to create a firewall between the individual conducting the “social-media background check” and all hiring authorities. The person conducting the research should have clear guidelines about what information would be relevant to the position for which the candidate is being considered. Any potentially relevant information should be shared with a neutral member of management who can assess the information fairly without risking prejudicing the hiring manager prematurely. This reviewing authority might be a senior member of HR, Security, Risk Management, Legal, or perhaps even someone in the chain of command above the hiring manager. In some cases, your background screening firm might provide this service with a strict understanding of what will and will not be reported.

I know that seems a lot more complex than just googling candidates because your CEO “doesn’t like freaks,” but I’ll bet he doesn’t like all the lost productivity that comes from employee relations headaches and lawsuits, either.