2012 Needs Assessment Results
As many of you know we conducted our annual Needs Assessment from July 19th to August 3rd. I would like to personally thank over 400 of you that responded. This is the second year in a row that such a large percentage of our customer base has participated and we appreciate your feedback.
This year’s needs assessment focused on some of the new products that are currently under development as well as some new resources we have in the pipeline. We also asked specifically about this ASR blog and what topics you want to see covered in the future. We were excited to see many responses and will be using one particular recommendation for an article series, running a successful recruitment process, in the next few months. (more…)
Supporting Internally Developed Minimum Qualifications
Part two of a three-part series on the topic of Validating Minimum Qualifications.
The previous article focused on the content validity model as a tool for developing and supporting minimum qualifications. That discussion focused primarily on establishing minimal levels of education, training and experience. However; it is important to recognize that there are other requirements that go beyond education and experience requirements such licenses, certificates, age, and U. S. citizenship. Many of the additional requirements placed on job classes are established by law and therefore are externally imposed, which distinguishes them from qualifications that are internally developed and imposed
This article will focus on support for internally developed and imposed minimum qualifications. The next article in the series will put together all the components of the application screening process to maximize its effectiveness which goes hand in hand with its reliability and validity. (more…)
Utilize a Content Validity Strategy to Establish Minimum Qualifications
Part one of a three-part series on the topic of Validating Minimum Qualifications.
Screening applications is the single most common human resources activity performed by all entities, public and private, that are involved in selecting employees. This process is typically not considered a test in the common use of the word, but it is. Since it is part of the selection process, it is required by the Uniform Guidelines for Employee Selection Procedures (UGESP 1978) to be both valid and reliable.
Just as the job analysis serves as the foundation for most of the activities related to test development and classification and compensation, the systematic analysis of the job should also be used to write the actual class specification which would include the minimum qualifications. Class specifications should be the standard for documenting the tasks to be performed on the job along with the knowledge, skills and abilities necessary to perform those tasks. In addition, class specifications should include a summary statement of how the minimum knowledge, skills, and abilities may be obtained. In that regard, since the class specification flows from the job analysis, the document should be a condensed version of the information obtained in the job analysis. Similar to the job analysis, the class specification should reflect a flow from the work performed (tasks) to the knowledge, skills, abilities, and personal characteristics (KSAP’s) necessary to perform the job at entry and the education and experience necessary to obtain those entry-level KSAP’s. How the KSAP’s may be obtained, stated in terms of education, training, and experience, becomes the minimum qualifications requirement. (more…)
Legal Update: EEOC going up and down in court over investigation tactics
As expected, EEOC sought Eighth Circuit en banc review of its case regarding CRST Van Expedited, Inc. A panel of the appellate court ruled that the agency cannot use litigation discovery to identify claimants, and has to investigate for each individual claimant. Initially EEOC had filed for a rehearing, as well as for rehearing en banc. The panel decided to rehear and dismissed the rehearing en banc petition as moot. Then the panel, upon rehearing, affirmed itself on May 8. EEOC refilled its petition for rehearing en banc, and the full appellate court voted not to take up the case.
Meanwhile, the agency is touting a district court ruling in the Seventh Circuit, EEOC v. United Road Towing, Inc., No. 1: 10-cv-02259, N.D. Ill., 5/16/2012, a disability case where the court ruled that the agency could bring suit for 17 claimants not identified before suit was filed. The court indicated that under Seventh Circuit precedent the court should not review EEOC investigations to determine if a particular investigation supports claims in a class action.
But in the Ninth Circuit, a district court faulted EEOC regarding good faith conciliation (i.e., settlement talks) in EEOC v. Evans Fruit Co., No. CV-10-3033-LRS (E.D. Wash., 5/24/2012) and has ordered mediation. The court cited the CRST case.
That court noted that the Ninth and Sixth Circuits tend to be deferential to EEOC actions. But a Sixth Circuit district court has not been so inclined in EEOC v. Nestle Prepared Foods, No. 5:11-mc-00358 (E.D. Ky. 2012). The court denied the Commission’s request to enforce a subpoena seeking information for every employee whom the employer referred for or who actually submitted to a medical examination based on a charge of genetic information discrimination by a single employee.
Also in the Sixth Circuit, EEOC is trying to reverse a district court award of $750K to the defendant (EEOC v. Peoplemark, No. 11-2582, 6th Cir.) over a failed case involving use of criminal history for hiring. Affirmation of the award is supported by amicus briefs from some management groups who think that the agency should be slapped for pursuing a case it knew could not succeed.
Then a federal district court in Texas tossed out most of EEOC’s suit regarding widespread discrimination against blacks and Hispanics (hiring, retaliation) against a sporting goods retailer, at least for now. The case is EEOC v. Bass Pro Outdoor World LLC, No. 4:11-cv-03425, S.D.Tex., 6/1/2012. The court found that a handful of alleged racist incidents, although disturbing, did not amount to a pattern-or-practice case. The court also was not happy with allegations of retaliation where no claimants were named, nor with claims outside the charge filing deadline. However, the court kept the allegations of record-keeping violations in play and gave leave for EEOC to amend its complaint, indicating that a plausible claim likely could be stated with more narrow allegations or more extensive facts. Texas is in the Fifth Circuit.
EEOC has also been on the receiving end of discovery action. The for-profit university in EEOC v. Kaplan, No. 1:10-cv2882 (N.D. Ohio) has gotten the court to order the agency to identify claimants and to disclose its own practices regarding use of credit history for employment decisions.
Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.
Legal Update: Commuting Accommodation Not Required in Sixth Circuit
A reasonable under the Americans with Disabilities Act (ADA) might be to alter an employee’s work schedule. But a wrinkle that has come up recently is whether the employer must accommodate an employee’s commute with a schedule change. The Sixth Circuit ruled that it did not in Regan v. Faurecia Auto Seating, 6th Cir., No. 11-1356, 5/10/2012. Regan has narcolepsy; she can fall asleep at work or when driving, although the condition is mostly controlled with medication. She informed the company of her condition when she was hired in 2005. Two things happened in 2008 that changed her commuting pattern. (more…)
Legal Update: Fair Pay Act is Back, and Gone
Sen. Barbara Mikulski (D-MD) and six other Senate Democrats tried to revive the controversial legislation. A version passed the House in 2009, but stalled in the Senate.
Some supporters of the Lily Ledbetter Fair Pay Act, which might have been expected to provide some momentum, balked at the additional proposed legislation, at least until the results of Ledbetter became known. The last major action in the Senate was the failure to bring the bill to a vote in November 2010. There was a repeat of that on June 5. Equal pay for women has been a stated priority of the Obama Administration. Interestingly, the number of sex-based pay discrimination charges has declined slightly from 2,268 in 2009 to 2,191 in 2011 (Brower, 2012). Brower also indicated that the number of EEOC pay-related suits is down in the Obama Administration compared to activity during the Bush years.
With the formation of a federal interagency task force on pay equity by the current Administration, we might have expected litigation headlines. It’s been quiet, although there have been news reports that EEOC has been piloting approaches to pay discrimination cases.
EEOC did not fare well in a recent Equal Pay Act (EPA) case, EEOC v. Port Authority of NY and NJ, No. 10 Civ. 7462, S.D.N.Y., 5/17/2012. The case involved the Port Authority’s non-supervisory in-house attorneys, and the allegation was sex discrimination in failing to provide equal pay for equal work. EEOC argued that claimants and comparators all had the same title and job code, were all valuated on the same performance competencies, and had no job descriptions (allegedly not at all) identifying different duties.
As the court noted, the argument was essentially “an attorney is an attorney is an attorney.” But the court wasn’t buying it.
EPA hinges on a showing that responsibility, skill, and effort are equal. EEOC covered responsibility, but not the other two factors. “Abstract generalities” that could apply to any attorney will not do. Having the same title or job code does not establish same job content. “It strains credulity to argue that Port Authority, which does not set wages based on a lockstep scale, does not factor into its pay decisions the kind and quality of work its attorneys perform. The allegations as a whole simply do not rise to the requisite level of facial plausibility.” Case dismissed, for failure to state an EPA claim for which relief may be granted.
In addition, last month we had a case in the Seventh Circuit where the panel seems to be urging reconsideration of the circuit’s position on refusing to consider assignment to a vacant position as a reasonable accommodation. The decision in Port Authority would seem to be in line with an argument that an attorney (or someone in another occupation) may not be fungible across assignments. Assignment to a vacant position might be reasonably expected to be considered, but it still would not be reasonable if it created undue hardship for the employer. As noted previously, violation of seniority provisions seems to qualify as undue hardship, but there is no clear judicial guidance and a circuit split on this kind of accommodation.
Reprinted with permission from the Personnel Testing Council of Metropolitan Washington.