Change is in the hands of the employers who actively hire and retain


On February 16 of this year, the EEOC held a hearing to discuss the growing number of reports that some U.S. employers were posting job notices with job specifications that included “must be currently employed.”

It is difficult to understand why an employer would only want to hire from the currently employed.  The only thought that comes to mind is that some employers may feel that the unemployed are not qualified for the job or are poor performers, an idea suggested also in the EEOC hearings.

Is it illegal to exclude the unemployed from applying for jobs? In the strictest sense no it is not illegal to exclude the unemployed. Being unemployed is not a protected class under Title VII of the Civil Rights Act, so employers can require this if they choose (just like they can exclude smokers, overweight people, etc.). However, it is also true that a disproportionate number of unemployed are black, Hispanic, disabled, or older workers, etc.  Asians are also among the highly unemployed.

Therefore, if you exclude the unemployed from your applicant pool, you run the risk of escalating disparate treatment claims (when an employer treats some people less favorably than others because of race, religion, color, sex, national origin, or age) and possibly adverse impact claims (when women and minorities are not hired at the rate of at least 80 percent of the best achieving group). So, while it is not technically illegal, excluding the unemployed may indirectly open you up to disparate treatment and adverse impact claims, creating a legal headache that you probably don’t want to deal with. 

However, in addition to the legal implications of such a policy, there is a practical implication to the issue. Simply put, employers may also be overlooking very qualified individuals. Assuming that the end goal of the recruiting and selection process is to hire the employee that has the potential for the best performance in the job and the greatest commitment to the company, it seems foolish to limit the pool before actually reviewing candidate qualifications. 

Considering that a good number of high performers are currently in the unemployed ranks, not because of poor performance, but because of circumstances outside of their control like companies that have shut their doors, had major lay-offs, or simply due to the uncertainty of the economy, for example. It is safe to say then, that to not consider the unemployed shows a lack of foresight.

And, for employers who think they are able to work with the select few they did not lay off, what about those that remain employed? There are equally growing reports that show roughly one third, or about 77.5 million employees, are currently looking for or are open to new opportunities.  Simply put, that means that those employees, about one third of your workforce, are disenfranchised and unhappy about their current work environment.   

We all know how that in a tough economy, many employees feel forced to stay in jobs that they might have already bailed out on in the past.  Equally true, is that when economic times are hard, employers tend to rely on fiscal techniques to mitigate the lack of revenue such as a cut or freeze in salaries, furloughs, trimmed benefits, and wholesale layoffs. Generally though, employees who survive the fiscal hammer wielded by their employer are pushed to do a lot more with a whole lot less and the longer it lasts, the greater their penchant for employment change.

As an employer, you are trying everything possible to retain existing employees, but, if necessary, replacing those that leave. So, employers who are ‘waiting for the right candidate’ who is already working, stand a good chance of acquiring a disenfranchised or already unhappy individual and are quite possibly looking past a great candidate that can be in position should another employee leave.

For employers to survive, it is important to understand what employment strategies need to be changed, both from a recruitment and retention perspective as well as from a motivational perspective.

It is well known that employees do not leave organizations; they leave managers and work groups.  It is equally important to remember that those that are in the ranks of the unemployed may be there due to forces beyond their control and could, quite possibly, help to increase motivation in the organization.  A company that is growing, hires, and a company that hires motivated and excited employees is seen as strong despite the economy.

It is important to review traditional human resource efforts, from those that limit the employment pool to those that limit employee engagement.  Such patterns to exclude fail largely because they are limited by outmoded bias, resources and money … and they are also based on past conditions that allowed for exclusion to become the norm.  One thing is for sure, organizational actions are watched, noted, and acted upon.

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Explore posts in the same categories: Business Strategy, Compliance, Engagement, Legal Trends

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