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The Retail Employer

The Retail EmployerDecember 2007

New EEOC Fact Sheet Reminds Employers to Vet Screening Criteria Carefully

by David Nagle

Employment tests such as cognitive tests, criminal background checks and physical ability tests can often help employers sift through large pools of job applicants and employees seeking promotion. A new fact sheet issued by the U.S. Equal Employment Opportunity Commission ("EEOC") reminds employers to be careful in deciding what tests to use and how to score those tests. While the fact sheet does not stake out new ground, the EEOC's focus on an increase in testing-related discrimination charges should impel employers to ensure that their own procedures comply with federal anti-discrimination laws.

Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act of 1990 (" ADA") and the Age Discrimination in Employment Act of 1967 ("ADEA") prohibit discriminatory employment testing. As the EEOC's new fact sheet makes clear, employers can be liable for violating these laws not only if they use employment tests to discriminate intentionally, but also if they use neutral testing procedures that "disproportionately exclude people in a particular group by race, sex, or other covered basis." This type of disparate impact claim is subject to the same burden shifting as other Title VII claims.

Where a test or other selection procedure has a disparate impact on members of a protected class, the employer must show that the test or procedure "is job-related and consistent with business necessity." If the employer makes it over this hurdle, according to the EEOC, employees can still argue that a "less discriminatory alternative" is available to predict job performance.

The fact sheet highlights that employment tests also may be vulnerable to ADA claims if they include unlawful disability-related inquiries, screen out disabled individuals based on standards that are not job-related and consistent with business necessity, or are administered in a manner that fails to provide reasonable accommodations to otherwise qualified individuals with disabilities.

The EEOC fact sheet concludes with a list of "best practices." Among other things, the EEOC suggests that employers "ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used." Employers who rely on tests validated years ago may be violating the law. The EEOC recommends that employers stay informed about changes in job requirements and modify testing procedures accordingly.

"A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored," says the EEOC.

Ensuring that your company uses permissible employment tests and selection procedures is a complicated process which must take into account various employment laws. With attorneys experienced in disability management, employment discrimination and affirmative action, Jackson Lewis is well-suited to help you sift through the applicable anti-discrimination statutes so that you can appropriately sift through your applicant pools.

EEOC’s “Employment Tests and Selection Procedures” information may be found at http://www.eeoc.gov/policy/docs/factemployment_procedures.html.

David Nagle will discuss the EEOC’s position at the Retail Merchants Association’s First Friday Forum on February 8, 2008. More information and online registration will be available at www.retailmerchants.com.

David E. Nagle has advised employers with respect to legal issues in the workplace for over 25 years. He is a partner in the Richmond office of Jackson Lewis, a law firm devoted exclusively to the representation of employers in labor, employment, employee benefits and immigration law matters. Jackson Lewis has 400 attorneys in 30 offices across the nation. David may be contacted at (804) 648-4077, or at nagled@jacksonlewis.com.

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7 Tips for Solving Problems

Regardless of the type of business you’re in, one of the most important things you do is solve problems. Whether you provide products to improve people’s lives or services to help them, solutions are at the heart of all organizations – whether they are businesses, non-profits, or government agencies. The best products and services in the world solve problems in timely, cost-effective and innovative ways.

But, problem solving does more than just enhance what you offer to customers and clients. The ability to solve problems can also help your organization thrive as a whole. Employees who are skilled at solving problems can help your company in many ways, from saving money by improving a billing process, improving customer service by enhancing turnaround time, or getting more done by implementing more effective systems.

When everyone in your organization is a skilled problem solver, opportunities are limitless. That’s because there will always be problems to solve, and for solutions-minded organizations, that’s a good thing. As Lee Iacocca said, “We are continually faced by great opportunities brilliantly disguised as insoluble problems.” Check out these seven tips for effective problem solving.

  1. Discover and diagnose problems. Taking the step to look for and diagnose problems is a difficult one. It’s easier to focus on maintaining the status quo, even when problems are staring you straight in the face, but this approach is worse for your organization and your employees. When problems are discovered, analyze and define them. Many organizations only react when they observe symptoms, but this costs time and money, and rarely results in improvement. Take time to research the problem and understand it, but don’t get bogged down in overanalyzing it.
  2. Take responsibility – whether it’s yours or not. Some problems result from the mistakes of others. Others present themselves naturally. Still others may simply be systems or products that work but could be improved. Instead of spending time pointing fingers, focus on what you can do to remedy the situation. As the saying goes, “I must do something” solves more problems than, “Something must be done.”
  3. Eliminate red tape and bureaucracy. Have a reason for every policy and system. Don’t refuse change because you are comfortable with how things are or because alternatives will stir the waters. In his book, How to Be the Employee Your Company Can’t Live Without, author Glenn Shepard recounts stories of companies that saved millions simply by eliminating unneeded paperwork and processes. Make sure your systems are streamlined to be as time- and cost-effective as possible.
  4. Listen to feedback. People rarely like dealing with feedback, because it typically comes in the form of a complaint or a reprimand. But, feedback is a powerful thing. Employee, co-worker, customer, and client feedback often highlights problems and provides ideas that lead to solutions.
  5. Look for answers outside your system. Sometimes, bringing in a consultant is a great way to determine the best solution. Other times, it’s best to look at other successful organizations and build models around their systems. Don’t be afraid to think outside your company’s status quo when you’re developing solutions.
  6. Brainstorm ideas. Providing solutions can be a simple task, but it can also be a time-consuming, complex process. Don’t be afraid to think big or small. Use the seven steps of effective brainstorming to uncover new ways of thinking. You never know where the inspiration for solutions will come from.
  7. Invest in solutions. Solving problems is about more than simply developing ideas and brainstorming solutions. In order for solutions to work, they have to be implemented. This may mean purchasing better equipment or tools. It may mean training staff or educating clients. It could mean revolutionizing your product lines or offering new services. Solutions cost something – whether it is time, money, action, or the discomfort of change. But they are well worth the investment.

Problem solving is a sign of a highly effective organization. Use these seven tips for developing solutions to help your organization and workforce thrive.

This article is reprinted with permission of www.ExpressPersonnel.com. Contact Mr. Lars Nordin at Lars.Nordin@ExpressPersonnel.com if you would like to be added to their distribution list. Express Personnel now offers RMA members a Retail Staffing Program. More information is available online through www.retailmerchants.com.

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Protect your computer data!

Procrastination on backing up your business data can be disastrous in any business. We never realize its importance until data is lost. Not only is the data lost but more importantly so are you and your employee. Nothing can get done; productivity comes to a screeching halt. The information needed to communicate with customers is gone. Yikes!!

We have become so dependent on our computers yet we fail to take action. It is just as important in small businesses as it is in medium and large businesses.

Imagine you frustration if you cannot access your customer’s data, your checking account, your payroll information, customer’s contact information, customers order information, recent email etc. All of this frustration exists because you never took the time to back up your computer’s data.

I have found it does not have to be either a difficult or expensive process.

There are many data companies available who automatically back up your information over the internet each day. You have the ability to pick and choose which information you want to back up.

Simply do a Google search for computer back up for a list of companies available.

I use mozy.com (www.mozy.com). You can sign up for free to store 2 gigabytes of data. They automatically back up my business and personal data every day. I select the information I want them to back up. Every morning I get a message on my computer saying the back up was completed successfully.

This article is reprinted with permission of Mike Dunleavey, Executive Associate —Business Support Center—Retail Merchants Association.

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