Placements and the Law

INTERNET RECRUITING:
INVESTIGATIONS RESULTING

Internet recruiting has become a cyberspace minefield for recruiters. Official surfers are monitoring your interstate commerce.

Recruiters recently received letters by Certified Mail from the Deputy Special Counsel and Senior Trial Attorney of the U.S. Department of Justice in Washington, D.C. informing them that the DOJ had opened an investigation into their “pattern or practice” of discriminating against non-U.S. citizens in job postings. EEOC, OFCC and state agency Internet compliance activity is also increasing.

The DOJ letter assigned a “Charge Number” to the investigation, cited sections of federal law (8 USC 1324b, 28 CFR 44.305, etc.) and required written answers to a series of detailed questions. These included identification of the business entity, its number of employees, those responsible for maintaining its records, all job openings posted, all candidates who responded, all candidates who were interviewed, all candidates who were referred for employment, all documents used in the process, all written hiring policies, etc. Full disclosure also required identification of the clients.

With all the talk in Washington about prescription drug coverage, you’d think they’d at least include a nitroglycerine tablet.

But since they didn’t, here’s the legal way for you to avoid a heart attack:

1. LEAVE LA-LA-LAND

The first (and often most serious) problem a lawyer faces in defending discrimination cases is to convince the recruiter that the problem is serious. By the time the lawyer has been contacted, the recruiter has often delayed responses, provided incomplete information, and antagonized the investigator.

The early stages of an investigation are critical, since a decision is made whether to “refer” the matter for prosecution. So let’s prevent this from happening to you.

As you leave La-la-land, please read these signs aloud for the last time:
a. We get paid for placing people.
b. We were ignorant of the law.
c. We had good intentions.
d. We were following the client’s direction.
e. We are not the employer. [You’re still liable. 42
USC 2000e-2(b)]
f. We were attempting to correct inequities.
g. We have a written policy against discrimination.
h. We employ minorities.
i. We place minorities regularly.
j. We contribute to minority causes.
k. We close our office on Martin Luther King Day
l. We marched in the civil rights movement.

This is serious business in one of the most complicated and “strict liability” areas of the law. The federal and state governments have zero tolerance for violations. The DOJ, EEOC, OFCCP and state authorities will aggressively investigate and prosecute violations.

2. DON’T INDICATE CERTAIN INFORMATION IN YOUR INTERNET POSTINGS

Most of the mistakes involve citizenship, age and gender-based job titles or dress codes.

The appearance of discrimination has been the ruin of many a recruiter. In fact, the vast majority of fines and other punishment have been against recruiters who honestly thought that their good intentions and the fact that they weren’t the employer were defenses.

Our long-time subscribers may still have my Acting Affirmatively audio package that included the items you can’t include at the recruiting stage. They made the ones you can include easier to figure out, so I’ve updated them.

Here are examples of prohibited job requirements:

a. Citizenship
Asking for submission of a birth certificate or other
proof of U.S. citizenship.

b. Sex and Marital Status
“Male”
“Female”
“Must wear dress.”
“Three-man office.”
“Draftsman”

c. Racial Characteristics
“Middle-Eastern”
“Asian”
“Black preferred”

d. National Origin
“American-born”
“Native American”
“Hispanic”

e. Religion
“Christian values”
“Optional prayer services.”
Anything that indicates a religious denomination
or custom.

f. Age
“21 to 30”
“Under 40”
“Recent college grad”
“Young office”
“Long-term career-minded person”
“Recent retiree” (Surprise!)

g. Physical Condition
“Good health”
“No handicapped access.”

h. Geographic Areas
“Chicagoland resident”
“Suburban commuter”

Note that we are only covering Internet job postings. Once the candidate has been referred and interviewed by the employer, he/she can ask additional questions about citizenship, proof of age, handicaps, and other job-related or statistically-required items. These are inappropriate for you to ask.

3. KNOW WHAT YOU SHOULD REQUIRE
The basic rule is that any requirement must be job-related. If you’re not sure, check with the client and satisfy yourself that it doesn’t cross the line.

Let’s say the client wants you to recruit an engineer for an assignment in Iraq. The Director of Engineering with the client tells you he’d like a Middle-Eastern mechanical engineer who is a U.S. citizen or permanent resident with a recent M.S.E.E. from an American university who speaks Arabic with a Gulf dialect. You called our office because this sounds too ethnic.

The Internet posting should identify that the position is in Iraq, that an M.S.E.E. is required, and that the engineer must speak Arabic with a Gulf dialect. Everything else sounds like simply a preference that bears no relationship to job performance.

The American university requirement is not necessarily discriminatory, but it sounds suspicious. The “recent” degree invites age discrimination. Including these will have an official surfer wondering about this “suspect criteria.”

Can you add additional facts to make U.S, citizenship a “bona fide occupational qualification” (BFOQ)? Sure. It can be a classified job that requires U.S. citizenship for clearance. But unless the client can show you in writing where some government agency has acknowledged a BFOQ as necessary for job performance do not assume it exists! (Equal Employment Opportunity Commission v. Sedita, 755 F Supp 808)

The BFOQ exception to Title VII of the Civil Rights Act of 1964 (42 USC 200e, et seq.) is intended to be “narrowly construed.” You must be able to show that asking about these items is “reasonably necessary” to the operation of the client’s business. [(42 USC 2000e-2(e)(1)] This is not likely to occur during your lifetime.

And that Director of Engineering? Expect him to deny that he gave you a questionable requirement when the investigator asks. If it’s in writing from the client, you’re “jointly and severally liable.”

4. FORGET REVERSE DISCRIMINATION

Employers who have compliance problems love to give recruiters otherwise discriminatory qualifications so they can make up for deficiencies in their workforce. However “reverse discrimination” is rarely mandated by government agencies anymore.

The law is clear: You cannot “prefer” or “require” any discriminatory qualification even to assist the client in complying with its affirmative action program!

So if the client’s representative tells you it’s required to hire a certain ethnic group, females, or older people, ask to see the official court order or government mandate.

After three decades, we have seen this exactly once. Three decades ago.

5. EDIT WHEN YOU SCAN OR RETYPE RESUMES

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One of the dangers here is that you are liable for sending any discriminatory information on resumes to the employer. An employer can argue it did not consider the information. You don’t have that defense. You considered it when you presented the candidate by forwarding his resume. So legally, you wrote the candidate’s resume – whether you did or not.

In my book The Resume Makeover, we gave readers the opportunity for a critique of their resumes. Even after following our guidelines, almost half of the thousands we received for review contained some goofy attribute that a recruiter should delete.

Here are three guidelines that will help:

a. Remove any photograph. Presenting it is automatically a violation of the law.
b. Delete maiden name, citizenship, marital status, number of children, reference to children, race, racially-based organizations, religion, religious organizations, national origin, age and physical condition (including disability).
c. Eliminate anything within the eight areas covered in Section 1 unless it is absolutely job-related.

6. MAINTAIN HARD COPIES OF INTERNET RECORDS

If you don’t maintain accurate written records of all search assignments backing up all Internet job postings, you’re asking for trouble. You also must keep files on all responses, sendouts, e-mail correspondence and everything else relating to these transactions regardless of whether you place anyone.

Under federal law, these records must be maintained for at least one year (29 CFR 1602.14 and 29 CFR 1627.2 et seq.) Most states have longer retention periods, so check with your lawyer. Our suggestion is to maintain everything meticulously for three years and you’ll be fine.

Here’s part of a typical letter request you can expect:

1. With regard to positions (name of your business) advertised for on the Internet:
a. State the date(s) each position was posted.
b. State the job title, job responsibilities, salary and benefits of each position.
c. Provide all documents referring or relating to each position, including job orders, job descriptions, pay scales and benefit descriptions.
d. Describe each job requirement or qualification necessary for hire.
e. State the number of candidates who applied for each position, the number interviewed and the number selected.
f. Provide all correspondence (including e-mails), resumes, or other documents submitted by each candidate.

2. If the prospective employer expressed interest in hiring any of the candidates submitted by (name of your business):
a. State the name, address, telephone number and e-mail address of each candidate.
b. State the name, address, telephone number and e-mail address of each prospective employer.
c. State the name, address, telephone number, e-mail address and title of each person with the prospective employer who expressed interest in hiring each candidate.
d. State the outcome of each referral (e.g. interview, hire, future consideration, etc.).
e. Provide all correspondence (including e-mails) relating or referring to each outcome.

3. If the prospective employer rejected any of the candidates submitted by (name of your business):
a. State the name, address, telephone number and e-mail address of each candidate.
b. State the name, address, telephone number and e-mail address of each prospective employer.
c. State the name, address, telephone number, e-mail address and title of each person with the prospective employer who rejected each candidate.
d. State the reason for the rejection of each candidate.
e. Provide all correspondence (including e-mails) relating or referring to each rejection.

Failure to provide information leads directly to the next letter or subpoena — to the client. Nothing makes a client an “un-client” as fast. Then the investigation turns to the un-hired, unhappy candidate.

Use three years as your guide, print everything (computer crashes are no defense), and resolve to be ready with a fully-documented response to any government inquiry.

It will go a long way toward demonstrating that you understand your obligation under the law.

7. ESTABLISH A SEPARATE INTERNET RECRUITING POLICY

Here’s a sample you can use:

(NAME OF YOUR BUSINESS)
INTERNET RECRUITING POLICY

(Name of your business) has a strict policy of recruiting and referring candidates through the Internet and otherwise without regard to citizenship, sex, marital status, race, national origin, religion, age, physical condition or location of residence (“discriminatory criteria”).

Therefore all Internet job postings must contain only those requirements necessary for job performance in the position advertised. This includes education, training, experience, and other objective criteria.

Further, candidates shall not be asked about any discriminatory criteria during the recruiting and referral process.

Should any client require any discriminatory criteria when placing a search assignment, (your name) shall be immediately notified prior to commencing a search.

ALL INTERNET JOB POSTINGS SHALL BE APPROVED BY (your name) PRIOR TO BEING POSTED OR CHANGED.

This Policy should be on your bulletin board with copies dated and signed by each recruiter. It should be separate from your employment agreement.

With this information and a little preparation, your good intentions should match your good deeds . . . and may your mail contain placement fees!

Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. For over 32 years, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more search and placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of many bestselling books in the career field. Jeff may be reached at: Law Offices of Jeffrey G. Allen, 10401Venice Blvd., Suite 106, Los Angeles, CA 90034 – (310) 559-6000 – jeff@placementlaw.com

More than thirty-five years ago, Jeffrey G. Allen, J.D., C.P.C. turned a decade of recruiting and human resources management into the legal specialty of placement law. Since 1975, Jeff has collected more placement fees, litigated more trade secrets cases, and assisted more placement practitioners than anyone else. From individuals to multinational corporations in every phase of staffing, his name is synonymous with competent legal representation. Jeff holds four certifications in placement and is the author of 24 popular books in the career field, including bestsellers How to Turn an Interview into a Job, The Complete Q&A Job Interview Book and the revolutionary Instant Interviews. As the world?s leading placement lawyer, Jeff?s experience includes: Thirty-five years of law practice specializing in representation of staffing businesses and practitioners; Author of ?The Allen Law?--the only placement information trade secrets law in the United States; Expert witness on employment and placement matters; Recruiter and staffing service office manager; Human resources manager for major employers; Certified Personnel Consultant, Certified Placement Counselor, Certified Employment Specialist and Certified Search Specialist designations; Cofounder of the national Certified Search Specialist program; Special Advisor to the American Employment Association; General Counsel to the California Association of Personnel Consultants (honorary lifetime membership conferred); Founder and Director of the National Placement Law Center; Recipient of the Staffing Industry Lifetime Achievement Award; Advisor to national, regional and state trade associations on legal, ethics and legislative matters; Author of The Placement Strategy Handbook, Placement Management, The National Placement Law Center Fee Collection Guide and The Best of Jeff Allen, published by Search Research Institute exclusively for the staffing industry; and Producer of the EMPLAW Audio Series on employment law matters. Email him at jeff@placementlaw.com.

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