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Author: Brett Holubeck

Job Descriptions, Recruitment and AI

Published by Brett Holubeck on November 25, 2019
A "now hiring" sign to fit the theme of how companies engage in recruitment.
Photo by Free To Use Sounds on Unsplash

Finding good employees is tough. Unemployment is at a 50 year low (it is around 3.6%) There are around 1 million more job openings vs. potential applicants at this point in time, and the reality is that immigration and finding candidates that can come to the US to work is getting more difficult under the current administration.

So, how can companies find the right candidates? And why is an employment law blog writing about recruitment? Recruitment efforts (when not accurate or strategic) can have negative implications on employees in the workplace, and the use of particular recruitment software strategies can be sticky- so being well-informed of the pitfalls is key.

It Starts with the Job Description

Crafting job descriptions is an incredibly important part of any recruitment process. Why does it matter? There are 3 important reasons. It sets your expectations for recruiting for the position, it sets the essential job duties if an employee is disabled and needs an accommodation under the Americans with Disabilities Act, and it forms the basis of meeting the duties within the white-collar exemptions.

Setting Expectations

An advertisement for an open position will always contain a job description and expected duties of the position. The accuracy of these postings are critical. A poorly worded job description will not attract the right candidates will create a big waste of time and money for the business and may even expose the company to a discrimination claim. In the event a business chooses to hire an applicant who was recruited with an inaccurate job description,  when these candidates join the company, they will likely feel lied to, and  that the job does not match what they applied for. LinkedIn’s Talent blog has a great breakdown of what candidates actually review when they see a job description. According to LinkedIn, candidates believed that the most important parts of the job posting were the compensation, qualifications, and job duties. Clear and specific measures of what success in the position looks like were also very popular with candidates. The best job postings also let the candidate know exactly what they need to do to achieve success in the position.

Job descriptions and Essential Functions under the ADA

 The job description forms the basis of the essential functions of the position, which determine whether someone can be accommodated under the ADA if they have a disability. In many positions, it is critical for the company to have clear job descriptions to defend themselves in the event that a person has a disability and cannot be accommodated. Job descriptions should be formalized and written down. For example, attendance can be a regular requirement of a job. 

White Collar Exemptions

Finally, the job description can serve as evidence that a person meets one of the salary basis exemptions for overtime. In many instances white collar employees (think Doctor, Lawyer, Manager, etc.) will qualify as exempt from overtime which means even if they work over 40 hours they would not qualify for overtime pay.  A written job description stating the duties of these individuals will be used as evidence to see if the person meets the relevant exemption for the executive, administrative, professional, sales, or other exemption related to overtime pay.

AI and Recruitment

There is no doubt that technology can aid immensely in recruitment. One can consider all of the technological improvements that have made work so much better. The internet allowed job openings to be posted online, online applications allow people to apply at their convenience (without having to mail or hand deliver an application), scheduling software can make setting up an interview a breeze, and applicants can access reviews of the company through Glassdoor, equipping them with information that would have been much more difficult previously unless you knew someone on the inside. 

It is a big task for any company to try to select the right candidates, especially when the pool is large and diverse. Many companies have begun using software to screen out candidates and select the best candidates for the position, however, many of these tactics have their own pitfalls you should be aware of (some of them being blatantly asking for a lawsuit). These methods can include using software to screen resumes, (unlawfully) targeting individuals for applications and advertisements based on characteristics of individuals like zip code and age, and finally conducting interviews through video or using an electronic device, essentially streamlining the interviewing process and lessening the need for in-person manpower.

Screening Resumes with Software

Using software to screen resumes and applications can be efficient. If a job requires a certain certification, degree, or level of experience and a candidate does not have that and a company cannot or does not want to consider applicants without the skill or experience, then a resume screener can automatically reject these applications and perhaps even send out an email letting them know that they were not accepted for the position. It basically prevents a real human from having to review an application. Of course, you do need to be careful about machine learning and letting the app run on its own. Amazon had to adjust some software that used machine learning that it was developing because the software was discriminating against women. The software penalized candidates for having “women” in their resume and penalized candidates from 2 women’s colleges. Companies must be careful to avoid discrimination in the resume screening by any algorithm or AI (Artificial Intelligence)  and continuing to monitor the software to determine if it later causes a disparate impact on any group.

Targeted Advertising

Facebook recently settled several cases involving its targeted advertising that enabled it to exclude certain individuals based on age. Age is a protected characteristic and is protected under the ADEA (The Age Discrimination and Employment Act of 1967). It is illegal to discriminate against someone on the basis of age. The ads targeted young men, so women and people over 55 did not even see the ads, which means that it was also discriminatory on the basis of sex (another protected class). Facebook also had ads that were targeted based on the zip code that individuals were living in which also may be problematic as racial makeup differs from zip code to zip code especially in metropolitan areas, which could also allow companies to discriminate based on race and even national origin.

AI Conducted Interviews

Video interviews have been one of the big developments that have come out in the last few years, but they are already subject to some problems. One of the most interesting and relevant examples of this at the moment is with the company HireVue and their interviewing technology.

HireVue’s AI conducts video-based  interviews which measure “non-verbal cues – such as facial expressions, eye-movements, body movements, details of clothes, and nuances of voice.” It also collects all the responses from the interviewers to allow users to more easily compare answers. 

There are a few issues with this kind of software including the question of if this technology could even reasonably identify things like emotion or personality traits. It could also potentially discriminate against individuals who have a different primary language, or even have individuals “put on a show” for the software based on knowing what the software is looking for.  The Brooking Institution stated that “Scientific evidence suggests that accurately inferring emotions from facial expressions is very difficult and it stands to reason that inferring personality traits is even harder, if it’s possible at all.”

Angela Chen at Technology Review stated the complaints that some groups have had with the software. “As a result, applicants who deviate from the “traditional”—including people don’t speak English as a native language or who are disabled—are likely to get lower scores, experts say. Plus, it encourages applicants to game the system by interviewing in a way that they know HireVue will like.”

However, HireVue claims that it

has a well-developed process that involves testing the input data used to train our algorithms for bias, and then performing what organizational psychologists call “adverse impact” (bias) testing on the output data (predictions) produced by each algorithm. If we find that a certain factor studied by the algorithm is producing a biased result, we take it out of the algorithm, retrain it with all data except that factor, and test it again. This all happens before the assessment can go live in an interview, so you can rest assured that HireVue algorithms are de-biased long before you ever encounter them.

Title VII bans national origin discrimination and as HireVue measures language patterns it may be a problem for the software. The software may suffer problems from creating a disparate impact based on national origin (caused by the candidate’s speech patterns) and may discriminate against individuals with a disability that may have had a stroke or other condition that affects their speech or facial expressions.

As a result of these issues and as noted by Drew Harwell in the Washington Post, the Electronic Privacy Information Center (EPIC) filed a complaint with the Federal Trade Commission stating that HireVue’s use of “unproven” AI systems to scan people’s faces and voices is a threat to workers.  The FTC “regularly enforces ‘unfair and deceptive acts or practices’ statutes against companies found to be making claims to consumers without a ‘reasonable basis’ in a way likely to ‘cause substantial injury.”’ EPIC claims that the results from HireVue are “biased, unproven and not replicable.” Further, they claim that it could be biased against someone because of a protected characteristic.  “HireVue advertises that its technology does not use facial recognition technology” because its systems do not attempt to identify people.”

EPIC argues that this is misleading as the FTC ruled that facial recognition technology includes any ‘“technologies that analyze facial geometry to predict demographic characteristics, expression or emotions.”’ The result of the EPIC case is a case all recruiters should watch, and it will be interesting to see the arguments as it unfolds. Recruiters that use AI can especially benefit from following the case to see whether any changes are necessary to the software that they use to minimize any disparate impact it has only any protected class (like anyone with a disability or those that are not native to the US). The case and similar ones will answer important questions on how this software and others like it can address discrimination concerns, which will have a great, and likely positive, impact on how recruitment is done in the future.

Illinois has also taken a stand on the issue. It recently enacted legislation that requires the company to  disclose that artificial intelligence analysis will be used before the interview, and that the company must “provide each applicant with information before the interview explaining how the artificial intelligence works and what general types of characteristics it uses to evaluate applicants.” Companies must also get consent from the applicant before they use this software.

It will be interesting to see how the use of this technology evolves. There is likely a place for AI in recruitment, however there are still many problems to be worked out.

Conclusion

It’s a tough time for recruitment- with unemployment so low, and immigration work visas more difficult to obtain, finding quality candidates who can fill a job is a difficult task. To compound this issue, the HR Daily Advisor’s 2017 Annual Recruiting Survey found that 58% of respondents had no recruitment strategy. With no clear strategies at hand, and a smaller pool of applicants, getting clear about what you can do to strategically recruit is essential for companies to have the best chance of finding quality candidates in their search. Additionally, being aware of the implications of poorly vs. well written job descriptions, as well as the risks and rewards of certain software supports in recruitment efforts, will make your company better prepared to recruit moving forward. 

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Veterans in the Workplace

Published by Brett Holubeck on November 11, 2019
Image of a veteran saluting to represent the service of veterans and the impact of veterans in the workplace.
Photo by sydney Rae on Unsplash

It’s Veterans Day. A great day to honor all those that have served our country in the military. For employment lawyers, businesses, and Human Resource professionals, it is a great time to review some of the special requirements of employing veterans.

The Benefit of Employing Veterans

Companies love veterans. The Center for Talent Innovation found that efforts to hire veterans can “consume as much as 20 or 30 percent of recruiting budgets at some large corporations.” There are a number of reasons for the efforts that these companies put forth to hire veterans.

First, military veterans often gain valuable skills while they perform their service. Sometimes these are hard skills like working on airplanes, coding various programs, and engineering. Oftentimes, it is the soft skills that are gained through military service. Typical Army training includes a lot of activities that help improve discipline, communication and working with a team, and a ton of confidence through overcoming obstacles. All of these are transferable to the workplace.

Of course, some of this recruitment may be due to requirements for federal contractors and subcontractors. The Office of Federal Contract Compliance Programs requires these companies to make special efforts to recruit veterans as part of the requirements to complete affirmative action plans.

One other advantage is that employers can receive a tax credit for hiring veterans (it is going to potentially go away if it is not renewed by December 2019). Employers can get $1,500-$9,600 in tax credits for the first year of their employment.

Possible Disability Issues

Many companies that employ veterans have concerns about PTSD and other disabilities that affect many veterans. About twenty-nine percent of recent veterans report having a service-connected disability. This compares to the nearly one in five people in the US (approximately 56.7 million people) that have a disability. A quick reminder, most disabilities are relatively easy to accommodate. Two-thirds of disabilities require less than $500 to accommodate and one quarter cost nothing at all. Having a disabled person can even be an advantage in the workplace as they may bring a different and often valuable perspective that would otherwise be missed. And after all, what would the world be without Beethoven’s Ninth Symphony (composed when he was almost completely deaf), the music of Stevie Wonder and Ray Charles who were both blind, the inspirational story of Helen Keller (who as a deaf-blind woman lived a fascinating life and graduated from college nearly 90 years before the Americans with Disabilities Act was passed), and the challenges Franklin Delano Roosevelt faced from polio. The possibility of a disability should not deter companies from hiring veterans unless they cannot perform the job duties even with an accommodation.

PTSD and Veterans

One of the biggest challenges many companies face in employing veterans is Post-traumatic Stress Disorder (PTSD). PTSD is not limited to individuals in the military but can affect anyone. It affects approximately 3.5 percent of U.S. adults, and an estimated 1 in 11 people will be diagnosed PTSD in their lifetime. Studies have shown that around 11% to 20% of combat veterans have PTSD.

A person develops PTSD when they are directly exposed to death, threatened death, serious injury, or sexual violence. A person with PTSD has intense and disturbing thoughts that recur long after the traumatic incident that caused them ends and seeks to avoid any triggers that remind them of the traumatic event. These experiences can range from flashbacks; nightmares; intense sadness, fear or anger; and a sense of detachment from the world and other people. People with PTSD often seek treatment through therapy and medication.

How can employers accommodate PTSD at work? JAN has a great list of questions to consider to accommodate these individuals:

What limitations is the employee experiencing?

How do these limitations affect the employee and the employee’s job performance?

What specific job tasks are problematic as a result of these limitations?

What accommodations are available to reduce or eliminate these problems? Are all possible resources being used to determine possible accommodations?

Has the employee been consulted regarding possible accommodations?

Once accommodations are in place, would it be useful to meet with the employee to evaluate the effectiveness of the accommodations and to determine whether additional accommodations are needed?

Do supervisory personnel and employees need training?

Common accommodations for these individuals can include a flexible schedule and a modified break schedule. Employees with PTSD may be eligible for leave under the FMLA and the ADA. They may be eligible for intermittent leave under the FMLA based on the medical diagnosis of their doctors. As is common with accommodations, accommodating an individual with PTSD is likely a cost neutral accommodation (the accommodations involve changes to the workplace that do not require the employer to spend money, such as by purchasing special equipment, to accommodate the employee and allow them to work).

Service Dogs

Service animals cause many companies to panic. Many people have read about pets being claimed to be service animals when they lack any sort of training and are concerned about bringing animals into the workplace. However, services animals can be integrated into most workplaces relatively easily.

 As with any other request for an accommodation (and assuming that the ADA applies), an employer needs to go through the interactive process with the employee to accommodate their request. I’ve written about that here.

JAN has a great explanation of how to assess whether to allow these animals in the workplace as an accommodation.

What this means for employers: When an employee with a disability requests to use a service animal at work, you have the right to request documentation or demonstration of the need for the service animal (when the need is not obvious) and that the service animal is appropriately trained and will not disrupt the workplace. However, while documentation demonstrating that an employee has a covered disability may come from a health care provider, you may need to consider documentation from other sources that explains the need for the service animal and that shows the animal is appropriately trained.  Another option is to have a trial period; allow the employee to bring in the service animal on a trial basis to see if allowing the animal is effective and does not pose an undue hardship. There is no set time frame for a trial period, but one to six weeks might be enough time to assess the situation.

What this means for employees: In addition to documenting they have a disability, employees who use service animals need to be able to show that the service animal is needed for disability-related reasons and that the service animal is trained to be in a work environment without disrupting the workplace or otherwise behaving inappropriately. If your doctor recommended the service animal, then your doctor should be able to verify that you need the service animal for disability-related reasons. Regarding your service animal’s training, in some cases documentation from the service animal trainer would be helpful. In other cases, you may want to offer to demonstrate how the service animal behaves in the workplace.

Service dogs can serve a variety of functions including helping those with autism, individuals that are hard of hearing, limited mobility, diabetics, individuals with allergies, and those with a disease or condition that causes seizures, PTSD, and other issues. Many people fail to recognize that an individual with a service animal may have an “invisible” health issue that the dog is meant to accommodate or help with.

If there is an employee that is allergic to dogs, then the company should work with that individual to address the issue. Possible solutions can include ensuring that the service animal and the employee with allergies work in different parts of the building, that they have a different pathway to areas of the building than the service animal, and the use of portable air filters.

Of course, service animals may not be able to work in all environments and it may not be possible to accommodate an individual with a service animal. Anyone that must work in a sterile environment (think surgery) may not be able to have a service animal while they are in that area, places where food is prepared or food processing plants in the areas where the food is made (they must still be permitted in cafeterias and dining areas), and anywhere else where they may not be able to physically go (places that can only be accessed by ladders, etc.).

Where to Recruit Veterans

As I mentioned, many companies actively seek veterans. So where are the best places to recruit veterans?

Conclusion

Veterans have a lot to offer companies through the valuable training that they gained through their military service. There are a number of resources to help veterans find jobs, and there are a lot of resources to help employers interested in benefitting from the soft and hard skills many military members possess as a result of their service.

Lastly – Happy Veteran’s Day! Thank you so much to those of you who have served our country. We are thankful to have individuals like you who are willing and able to serve!

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Haunted Houses and Employment Law

Published by Brett Holubeck on October 31, 2019
Image of sign that says "Haunted Come Right In" that represents haunted houses.
Photo by Bee Felten-Leidel on Unsplash

Haunted Houses, Halloween Stores, and Employment Law

Halloween is a $9 billion dollar industry with more than 175 million Americans taking part. Haunted houses are a 300 million industry according to an NBC news article from 2013.

Consumers were expected to spend $3.2 billion on costumes and $2.7 billion on decorations with 35% of consumers going to a Halloween store to buy their costumes during Halloween. More than 36 million people were projected to visit haunted houses in 2018.

It is no surprise that Halloween is so popular, and people spend so much money on it. It is ingrained in our culture. Many Americans have fond memories of watching It’s the Great Pumpkin Charlie Brown, carving pumpkins, going trick or treating with just your friends, watching Simpsons Treehouse of Horror episodes or, if you are like my mother, scaring yourself silly with the latest horror film (Mom, why do you do that? Even your dog is too afraid to watch.).

There is a lot that goes on behind the scenes to make haunted houses and specialty stores come alive each October.

Preparing for an Intense Season

A haunted house will only be open, typically, about 6-8 weeks per year. Some haunted houses are open the entire year or transition their business to escape rooms or another venue in the off-season. The setup time can be four weeks or even more for a haunted house.  As with anything else that requires setup, businesses must invest capital to see whether they will eventually succeed. Not all ventures are successful, so it is critical that haunted houses, Halloween stores, and any other pop-up businesses effectively prepare to run successfully.

Here are a few things that these businesses can do to increase their chances of success.

  • Start planning early. Every haunted house needs effective planning to ensure that they are prepared for the short season. That means planning the haunted house design and ensuring that the materials are ready to be delivered to prepare for the setup.
  • Train your workers. As with any popup business or event, you need to make sure that you quickly bring employees onboard so that they are ready to operate the facility when it opens.
  • Have a well formulated recruitment plan and clear procedures

Some Notes on Safety and Haunted Houses

Working in a haunted house is not easy. There are a lot of things that the actors and actresses need to do to prepare to safely work in a haunted house. OSHA can also inspect haunted houses as it can inspect any other amusement park or attraction. I have written a bit about improving workplace safety here but there are some special considerations for haunted houses.

Haunted Houses must adhere to strict protocol regarding protection from fires as noted by this blog post from Quick Response Fire Supply.

In 1988, haunted houses were classified as “special amusement buildings” and specific provisions were added to that year’s version of NFPA 101: Life Safety Code. Overall, these include:

Every special amusement building must be protected throughout by an approved automatic sprinkler system that is properly installed and maintained.

If the amusement building has low lighting levels, it must be equipped with a smoke detection system, which will sound an alarm at a constantly attended location on the premises.

In buildings where mazes, mirrors, or other features are used to confound the egress path, approved directional exit marking that will become apparent in an emergency must be installed.

Here is a really great article from Entertainment Safety Solutions discussing the numerous things that all haunted houses should consider (and may be required to do) before they open. The article is too long to quote in its entirety, but it has some really great tips that everyone should consider. It discusses Fire Prevention, Detection, and Suppression, Electrical Safety, Exits, Emergency Lights (Illumination), and Egress, and Training.

The training listed in the article includes:

Emergency Response and Evacuation Procedures, including employee accountability assembly locations.

Fire drills.  Log evacuation times and any difficulties and mitigation efforts to improve evacuations. Fire extinguisher use.

Guest/employee safety e.g. do not touch or chase guests, ADA considerations, frightened guests/chicken exits, hostile guests.

Pre-opening safety checklists and inspections.

Hazard recognition.

Fire watch procedures.

Maximum occupancy limits.

Important phone numbers and radio procedure

Training is especially important, as many individuals will be new to the experience of running a haunted house and many of them are young and inexperienced in the business.

There may also be local requirements that operators must consider. For example, Illinois has specific requirements that must be followed for facilities in that state. All haunted houses in Illinois must be inspected.

Dealing with People

Haunted Houses also have one very unique aspect that is not found in many businesses: danger from customers. Physical injuries are common as noted by this article on the Huffington Post:

According to former and current professionals in the haunted house industry, it’s common for customers to freak out from fear and bust noses, bite arms and throw punches at the people they’ve paid to scare them. “It’s common, absolutely,” said Allen Hopps, who trains actors to work in haunted houses. “The problem isn’t the haunted houses or the actors, but the customers. They forget that people are actors and have a flight-or-fight reaction towards the person scaring them, not realizing one might be a 16-year-old girl.”

Also in the Huffington Post article, one operator said “I know one actress who scared a guy and he forced his way through a back door so he could hit her in the face,’ Hopps said. ‘Even so, she came back the next year.”’

Training employees is critical for understanding the best ways to prevent injuries. Such training typically includes rules against touching customers, maintaining the appropriate distance, and responding if someone lashes out. One of the major things that the haunted house operators can do is train staff before it opens to recognize signs of alcohol and marijuana impairment. You can read more about recognizing the signs of impairment here. Having your local sheriff or your worker’s comp carrier provide training on this topic may be beneficial for you business.  Many businesses also employ security guards or others to deal with unruly customers also. It is often best to prohibit anyone that is drunk, high, or seems like they would cause problems from entering the haunted house. Safety of employees is critical and it is important that employees are trained before a problem occurs and that proper safety precautions are taken for your employees.

Moving Your Business into Other Areas

Haunted Houses, Halloween stores, and pop-up businesses are temporary businesses. They do not operate the whole year. Many operators cannot afford to work full time as haunted house, but there are some options.

Many haunted houses have begun to move into escape rooms. For some farms and other owners with adequate land, the haunted house was their side venture. When branching out there are a few important things for business(es) to consider and how they will affect your employment practices:

  1. Will the new venture be its own business (LLC, etc.) or will it be owned by the current business? There can be important considerations regarding insurance, whether certain employment laws will apply (based on the number of employees), how the businesses will operate, and what will happen if the venture is unsuccessful.
  2. If the new venture will be a part of the old business, then how will the duties of the various individuals change? You need to make sure to update any relevant job descriptions to ensure that everyone understands their responsibilities.
  3. Update the employee handbook and any policies as necessary to adequately describe the new business venture and any necessary policy changes.
  4. Do you need to adjust your various coverages (worker’s comp, insurance, etc.) based on the new venture?
  5. Are you now subject to additional laws because you have more employees or because you now have expanded into another state or type of business?
  6. Have you followed the right regulations for your new business venture?

Conclusion

Haunted Houses and Halloween stores have a lot of requirements that they must follow. There are a lot of unique situations that apply only to them. However, every business has its own unique requirements and employment issues. Every business needs to consider what they need to do in their specific industry, state, and their particular business to maximize their chance of success. Most importantly, have a happy and safe Halloween- and don’t punch a haunted house worker in the face.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.