A few months ago, I had the pleasure of meeting Don Paullin the owner and founder of Hiring Firing Experts, Inc., and the author of the book reviewed here Hire Hotdogs, Fire Baloney; Hiring the Best.  Don has 20-plus years of experience in the HR and operations field working for large corporations and now consulting to them.

The book is good and practical, and at less than 200 pages it’s a quick read.  The key element to Don’s approach is to craft a meaningful job description.  Hiring the best is a direct result of the analytical process that goes into the creation of a good job description and sticking to that job description in the hiring and assessment process.  Don also provides hundreds of great real world examples of interviewing questions, criteria and hiring tips.

One of the best things about Don’s book is that it’s common sense oriented and immediately applicable to running a business.  Once you understand the purpose and how to create a decent job description, everything else (e.g., interviewing, hiring criteria, selection, rejection, assessment) is logically based on that job description.

Although I may somewhat differ with Don regarding the job description’s necessity, this difference in approach doesn’t mean that I believe that job descriptions are useless or that any of his other tips are unnecessary.  Instead, my two keys to effective workplace relations is to adhere to the “Golden Rule” (i.e., treat employees well), and pay them on time and accurately (don’t mess with employees’ money).  Both approaches aren’t necessarily inconsistent with one another.  My approach may be more suitable to entrepreneurs, or those who like to go by their gut, and don’t want to deal with employment related issues in any sort of analytical way.  Because Don’s approach is so analytical, some may shy away from that level of analysis because of the fear of bureaucracy and red tape that sometimes inherent with HR practices.

Then again, whereas my approach is based solely on my own observations and opinions, and not on empirical or legal research, and Don’s approach is more grounded in legal and empirical research, from a preventive and proactive human resources perspective, Don’s approach makes more sense, and should help to greatly reduce a business’ employment related expenses and increase profits.

On my LinkedIn group, California based attorney and group member Stefan Miller posted some great information about the recently effective Genetic Information Nondiscrimination Act (“GINA”).   This information is concise and easy to read.  So, I thought that it would be useful to post here too.  This post includes discussion between other group members discussing GINA.

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) becomes effective November 21, 2009, applies to businesses with 15 or more employees, and is likely to have a potentially significant impact on a variety of employer obligations, policies and practices. For example, GINA will impact existing Company employee handbook policies, practices relating to medical and physical examinations, wellness programs, and record-keeping and training practices. In addition, effective immediately, employers must post the new version of the EEOC poster – “Equal Employment Opportunity is the Law” – which incorporates both GINA’s new requirements as well as changes made by the recent amendments to the Americans with Disabilities Act (“ADA”), which took effect on January 1, 2009.

For more information, click on the following link:  http://www.jdsupra.com/post/documentViewer.aspx?fid=af5f4c95-fa50-41cb-9f9c-dd0fce63ca46.  This link takes you to a three page summary of GINA in either a Word or PDF format, which was written by Stefan.  Additionally, if you go to this link, you can obtain a free EEOC compliance poster, which includes GINA.  This two page poster is produced by the EEOC and is in PDF format.

1. Jacquie Seemann

Partner at Thomson Playford Cutlers

This is fascinating from an Australian perspective. We have nothing like GINA – the closest we come is provisions in our disability discrimation legislation which prohibit discrimination on the ground of a ‘presumed’ disability, including a presumed future disability.

2. Charles Krugel www.charlesakrugel.com

Regarding Jacquie’s comment about perceived disability, it’s the same in the U.S. under our federal & most state disability laws.

Not sure how GINA is any different from perceived disability when, based on my casual assessment of it GINA, it doesn’t appear to differ greatly from the perceived disability status.

Possibly, this is a matter of the U.S. Congresses addressing an issue that’s already been addressed in prior legislation; i.e., they’re calling greater attention to a hot and developing medical and privacy issue.

Speaking of privacy, I’m also, not sure of the GINA implications or overlaps with HIPPA either. Hopefully, these concerns will be addressed sooner rather than later.

3.        Stefan R. Miller

California Employment Law Attorney, Independent Workplace Investigator, Trainer and Principal of The Employers Law Group

I agree that there is a lot of overlap between GINA’s prohibitions and existing laws prohibiting perceived disability discrimination, including discrimination against someone for having a record of impairment (e.g., cancer). Like Charles, I agree that part of this is Congress’ effort to raise the profile of an emerging issue, particularly in the face of what appears to be some sort of significant legislative changes on health care. The big target of GINA was the health insurance industry but since a lot of information feeds through to health insurance companies from employers, I suspect Congress felt that they need to include protections in this particular piece of legislation. GINA also applies to employer-sponsored health insurance plans and, therefore, prohibits collection/use of genetic information in that sphere as well.

While I do not profess to be a GINA “expert”, I’ll take a stab at trying to identify some “new” wrinkles to GINA which fill in prior “gaps” in the law.

1. GINA establishes clear prohibitions about even seeking/collecting genetic information in the first place both through pre-employment and job pre-qualification medical examinations as well as in connection with wellness programs.

2. GINA also codifies into statute privacy provisions relating to how genetic information – including information inadvertently learned by the employer – must be handled/protected. I don’t know whether there are other existing federal statutory provisions that occupy this space. (In California, we have the Confidentiality of Medical Information Act.)

3. Notwithstanding substantial overlap with perceived disability discrimination under the ADA, there appears to be a subtle gap filled in by GINA. (I add this caveat: being out here in California where plaintiffs rarely sue under federal law — as California law is significantly more favorable — I will defer to those with more knowledge of ADA.) One thing GINA appears to be driving at is the notion of discriminating against someone because of the possibility one is susceptible to one day having a disease or genetic condition at some point in the future due to family history. I don’t believe that is covered under the ADA. In other words, the employer learns (either through an inadvertent self-disclosure or through a pre-employment medical exam) that Applicant’s sibling or parent was just diagnosed with a serious form of cancer. While there is no evidence that Applicant has the disease or that the employer believes Applicant is presently disabled in any way, employer refuses to hire Applicant for fear that at some point in the future, Applicant will become disabled. Another example would simply be if an employer terminated Employee X after learning that a sibling or parent has some form of cancer out of a generic concern employee would one day get the same cancer and have increased health insurance premiums or become disabled — even if employer contends it had no knowledge of Employee X having cancer and that, in fact, employer did not believe Employee X had cancer.

4. Even on the HIPAA/GINA issues, here again, I believe the changes are primarily on the insurance side. However, I believe that HIPAA still governs and applies to unauthorized disclosures of genetic information, an areas that GINA does not address. As for insurance issues, my understanding is that HIPAA permitted underwriters to use genetic information for underwriting purposes. GINA prohibits health insurers from collecting/using genetic information for underwriting/eligibility. My further understanding is that, while HIPAA already provides some protection against genetic discrimination in group insurance, GINA extends coverage to the individual insurance market.

I’d be interested in hearing anyone else’s thoughts or insights.

- Stefan

Stefan R. Miller wrote:

Here’s another resource I recently came across at John’s Hopkins Genetics & Public Policy Center. Consistent with our prior discussion about the primary purpose of GINA, it appears that most of the information on their website is focused on the health care side. But here are some FAQs which are also directed at employment discrimination:http://www.dnapolicy.org/gina/faqs.html

I know there are a few other limited exceptions but I also came across something else I had not seen previously which mentioned an employer can conduct genetic testing if expressly authorized by the employee and if the information does NOT go to the employer but instead goes only to the employee and his/her treating health care providers. I presume this is in connection with an employer wellness program but there was no specific citation or reference.

On September 24, 2009, I presented at the University of Illinois’ “Finding Talent” program for employers & recruiters. My presentation concerned legal issues surrounding background checking, electronic communication & social networking in recruiting & selection.

My seminar handout, PowerPoint, some cases and sample background checking waiver forms are available here.

The actual seminar was recorded as a webinar and is available here (due to WordPress’ file size restrictions the link takes you to a zipped file which requires unzipping; other than that it’s a typical media file that can be played on most media players).

Thanks to GumboWriters.com for sending me a promotional copy of the new book “The Trouble with HR – An Insider’s Guide to Finding and Keeping the Best People” by Johnny Taylor and Gary Stern, 2009, American Management Association.  I also received a copy of a promotional interview with Johnny Taylor regarding his book.  The interview follows my review below.

As far as HR books go “The Trouble With HR” is an interesting and quick read.  The authors adhere to the increasingly popular and accepted idea that human resources, particularly employee recruitment and selection, should be a key element in any business’ overall strategy and planning.  Some novel ideas are also suggested.

One particularly interesting concept is that corporate “talent acquisition professionals” (in-house recruiters) average about $75k per year along with a 1%-4% annual merit increase.  However, in order to maximize their performance it’s better to treat and compensate them like sales professionals.  Recruiters should be paid a base salary of $45k-$50k and “adding commissions based on a variety of factors” (Pp. 52-53).

One area that’s lacking is in statistical research and analysis to support how HR should be a core strategic function.  More specifically, there’s some discussion of the costs versus benefits aspects of effective HR, just not enough of it.  I suppose that deference should be given to the authors’ expertise in the field of HR.  But, it’s still a more potent argument to support the advantages of HR via costs analysis and empirical research supporting its advantages and impact on profit.  The authors seem to understand this contention too because they point out that “HR needs to evaluate its efforts and make sure that it is not only measuring but assessing what the business actually needs to know” (P. 171).

Overall, to get an idea of what HR experts think of recruiting and selection in 2009, this is a good read.  The Johnny Taylor interview is below.

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We had a chance to catch up with Johnny C. Taylor, Jr  and talk to him about his new book The Trouble With HR. Johnny was nice enough to sit down and answer some of our questions regarding hiring strategies and tell us a little about the real trouble with HR.

How should social networking sites be used when hiring employees?

Social networking sites should be used in the hiring process as an additional reference check tool. A good reference check protocol involves speaking with current and past employers and colleagues, criminal history, and even credit history in some cases.  Now employers can add to this list a review of what it is publicly available about a candidate on the internet.  Employers should keep in mind, however, that all negative information contained about a person on a social networking site is true. Therefore, employers should be careful to independently confirm what they learn from these sites.

Who do you understand the audience of this book to be?

This book is for anyone who is responsible for hiring or managing people — large and small businesses, not for profit organizations, and government employers alike.

What are some ways you can get your employees to fall in love with your company, thereby increasing retention?

There are four easy steps to live by. First you want to reward people fairly and in line with the

marketplace. Secondly always treat staff well; focus on recognizing every employee’s contributions. Also, Train employees and improve skills on their current job. And last but not least, Develop your most talented employees whom you think have leadership potential.

How has retention evolved in the last five to ten years?

Over the last decade, finding and retaining the best talent has become one of the most difficult challenges facing employers.  So now, retention is the name of the game.  Companies have always understood the importance and criticality of having a strong talent acquisition function.  Now, they realize it is equally compelling to have a strong retention function as well.  There is no point in spending millions of dollars recruiting “stars” only to lose them.

You can learn more about Johnny C. Taylor Jr. and check out his new book at The Trouble With HR at theTroublewithHR.com

Except for my PowerPoint, all documents are PDF formatted

My Power Point (20 slides)

My seminar handout (13 pages)

American Red Cross Reference & Background Check Disclosure Form

Kier Property Management Housing Background Check Forms

Roman Catholic Archdiocese of Atlanta Background Investigation Consent Form

Northrop Grumman Disclosure Form

Background Release Form Kreuzberger AssociatesARC RBC

Konop v Hawaiian Airlines Inc, 302 F3d 868, 9th Cir Fed Ct of Appeals 2001

Fischer v Mt. Olive Lutheran Church, WD Wis (Federal Circuit), 2002