Introduction

Recently, the U.S. Justice Department sued the city of Jacksonville, Florida over promotion tests that allegedly discriminate against black firefighters.

Jacksonville uses multiple-choice job knowledge tests for each competitive rank (Lieutenant, Captain, District Chief, and Engineer).

This employment discrimination case is a throw-back to earlier ones involving testing for employee selection and promotion in public safety departments.

There has been much litigation over police and fire jobs. This is probably because:

• They provide secure, middle-class opportunities with good benefits for individuals without college education.
• Before the Civil Rights Act of 1964 outlawed it, many of these departments had a history of deliberate segregation.
• These departments have been more aggressive than much of the private sector in attempting to institute objective standards that are intended to be completely fair and nondiscriminatory–but may in fact have discriminatory effects.

The discrimination alleged in the Jacksonville case

According to the Justice press release, the Jacksonville lawsuit alleges that:

[T]he examinations impact African-American candidates in two ways.

First, African-American candidates for promotion to the four positions pass the examinations at significantly lower rates than white candidates.

Second, even those African-Americans who pass the examinations are rarely promoted because the fire department selects candidates for promotion in descending rank-order based primarily upon each candidate’s written examination score and African-American candidates score significantly lower than whites.

In other words, the test is used not only on a pass-fail basis, but also to select among individuals with passing scores; indeed, potentially among those with very similar scores. In theory, someone could be passed over for promotion despite superior job evaluations and acknowledged superior leadership ability because they got one less exam question correct than the successful, but otherwise inferior, candidate.

Legal background on Jacksonville firefighter tests, qualifications, and disparate impact

There are two basic methods of proving employment discrimination: disparate treatment and disparate impact.

Disparate treatment (not involved in the Jacksonville case) involves a claim that someone was discriminated against intentionally. The Supreme Court’s decision in McDonnell Douglas v. Green (1973), discussed in this post, is the leading case on disparate treatment.

The other method, disparate impact, is the basis for the claims in the Jacksonville case. The basic law on tests and other job qualifications that have a disparate impact based on protected characteristics such as race and gender was pronounced by the Supreme Court in 1971 in Griggs v. Duke Power Co., discussed in some detail in this post.

These legal principles were codified by the Civil Rights Act of 1991, in response to a Supreme Court decision that Congress saw as having unduly restricted the application of Griggs.

Proof of a Disparate Impact Claim

There is a three-step process for proof of a disparate impact claim:

1. Prove that the group with a protected characteristic (here, African American applicants for firefighter promotions in Jacksonville) was selected (promoted) at a lower rate than others, with this disparity being statistically significant.
2. Once this is proven, the employer must show that the test or qualification is valid, meaning that it predicts job success in the target job.
3. If the employer can succeed in proving this, those challenging the practice can then attempt to show there were valid alternative employment tests or qualifications that could have been just as predictive of success, but with less adverse impact.

It is easy and commonplace for the law concerning testing and other objective job qualifications with a disparate impact to be viewed as requiring hiring or promotion of less-qualified individuals just because of their protected characteristics.

If the law strikes down an employer’s use of a test or qualification because minorities are less successful at passing the test or satisfying the qualification, it can appear that the employer is being prevented from selecting the best employees–and that this amounts to “reverse discrimination.”

Such a view is absolutely false.

To the contrary, the law facilitates hiring and promotion of the most qualified individuals by ensuring that qualifications are properly defined and measured. The Supreme Court in the 1971 Griggs case made this crystal clear:

Nothing in the Act precludes the use of testing or measuring procedures; obviously they are useful. What Congress has forbidden is giving these devices and mechanisms controlling force unless they are demonstrably a reasonable measure of job performance.

Congress has not commanded that the less qualified be preferred over the better qualified simply because of minority origins.

Far from disparaging job qualifications as such, Congress has made such qualifications the controlling factor, so that race, religion, nationality, and sex become irrelevant.

What Congress has commanded is that any tests used must measure the person for the job, and not the person in the abstract.

The long, sad history of Jacksonville Fire Department discrimination litigation

In 2009, Folio Weekly (which bills itself as Northeast Florida’s largest circulation and most influential newsweekly) published a story about Jacksonville Fire Department discrimination allegations entitled, The Fire This Time, by Susan Cooper Eastman. The following sketch of the four-decade history of Jacksonville firefighter discrimination litigation is based on this article.

In 1971, a federal consent decree found there was racial discrimination in the Jacksonville Fire Department’s hiring, and required that future hiring be racially balanced 50-50. As a result, Jacksonville hired large numbers of black firefighters, and by 1991 more than 20% were black.

But black Jacksonville firefighters lagged in promotions, and in 1991 more than 90% of leadership positions were still held by whites. As of 2009, this figure had improved a bit, but only to 88%.

”The department remained plagued by incidents of racism and allegations of race-based favoritism.”

In the ’90s, “[n]umerous discrimination lawsuits pointed to the city’s failure to promote black firefighters.”

”In 1992, the city decided it was free of the consent decree, saying the ratio of black firefighters in the city was comparable to the city’s white/black ratio, although it provided no proof” and did not obtain a court release from the decree. By this time, about 20% of the department was black, compared to the citywide black population of 30%.

Also in 1992, the department changed its promotion progression, allowing only those with the rank of engineer to test for a lieutenant position. Before this change, “215 black firefighters were eligible to test for lieutenant. After the change, only four were. And because there were already 300 white engineers, there was no point in testing to become one. Black firefighters say the change effectively blocked them from moving into the officer ranks.”

“[Tt]he city’s post-consent-decree hiring practices were clearly a step backward in terms of diversity. Between 1992, the year the city declared it had met its obligation, and 1995, the city hired 136 firefighters…. [O]nly two were minority.”

“A 2006 report by the city’s Human Rights Commission, undertaken in response to the incident in which two black firefighters found nooses on their gear,…[and b]ased on questionnaires given to 525 department employees, interviews about specific complaints and a … focus group with 50 employees, … characterized the department as racist, sexist and routinely discriminatory, a place where patterns of harassment and retaliation ensured that power remained in the hands of a select few.”

While many changes were made in response to the report, and to a subsequent task force’s recommendations, one of the study’s recommendations that was rejected was to fire the department’s industrial psychologist, human resources manager, and compliance officer.

The Folio Weekly article mentions a few recent lawsuits:

• Three African-American lieutenants sued over a 1994 captain’s test. They alleged the city had improperly abandoned the 1971 consent decree, favored whites by adding “seniority points” to test scores, and had allowed questions and answers from past tests to be used to help white job candidates. The city settled the case, and in 2001 promoted the plaintiffs to captain.
• As a captain, one of these plaintiffs sued again in 2007, alleging harassment, including that when he was promoted to lieutenant after he scored in the top five on his test, “rumors circulated that he’d cheated. Some
  white firefighters in the department made up T-shirts that read, ‘I studied.’”

Criticism of the promotion test

Promotions are based on a multiple-choice job-knowledge test, with points added for time spent in rank and overall time in service.

The lawsuit challenges this promotions process on the basis that the results show whites faring better AND that “the written exams don’t test for leadership, decision-making abilities, or other qualities that make a good officer.”

One of the plaintiff’s lawyers cites by analogy “a lawsuit filed by the Boston Chapter of the NAACP about similar testing in 1974, in which lawyers noted that if the Boston Red Sox chose players based on their understanding of baseball history and terminology, the team might have a really knowledgeable team that couldn’t bat, pitch or catch.”

This is where many critics of such litigation miss the boat. For example, the “Screwball Central” blog asks: “[1] Don’t you want the people who score highest on their test to be promoted? [2] Don’t we want the smartest and best qualified people in the top positions?”

Second question first. Answer is “yes.”

First question second. Answer is “not necessarily; they may not in fact be ‘the smartest and best qualified people.’” Just like those hypothetical ball players who aced the test on baseball history and terminology.

Any more questions?

Alternatives rejected by the Jacksonville Fire Department

According to the Folio Weekly article, those challenging the Jacksonville fire promotion test note that “[s]ome cities…have phased out written exams, and started using assessment centers, which incorporate real-life scenarios, such as administering discipline or prioritizing tasks — all actions observed by an assessment team.”

Years ago, the Jacksonville task force recommended consideration of switching to such a broader-based assessment method, but “the local union has fought fiercely to keep the current exam in place…[a]nd it has enshrined the test as the department’s only method of promotion in its collective bargaining agreement.”

What were they thinking?

Dr. Cassi Fields, President and CEO of Fields Consulting Group, is a nationally known expert in the design, development, validation, and administration of public safety testing projects, with special expertise in assisting departments that have been accused of bias in their personnel practices.

She says:

It’s 2012. How do cases like this still occur? This is an especially good question given that similar cases have been tried in the past and the court decisions have favored the test-takers.

In addition, most industrial psychologists agree that multiple-choice employment tests adversely impact minority candidates, and that there are alternative methods of valid testing that result in less adverse impact.

I find it strange that Jacksonville chose to give these types of tests for so long knowing that they would likely receive an internal challenge or a lawsuit.

I also find it strange that they were willing to settle all their lawsuits without fixing the cause of the problem-–especially since discrimination settlements are costly and can result in negative publicity.

The right solution: developing compliant, fair, and successful promotion systems and standards

Though the right solution may be time-consuming and expensive on initial inspection, it’s well worth the investment and saves dollars spent in paying settlements and fighting lawsuits. Dr. Fields says an unbiased solution for a promotional system may have multiple components. Employment tests must be valid and must allow candidates from all different backgrounds the opportunity to demonstrate that they possess the necessary qualifications to succeed if promoted. This means not relying on a multiple-choice job knowledge exam alone.

The right solution also requires properly preparing candidates for the promotion they desire. This is the most important aspect of all. Candidates are often missing key information when they compete for promotions. Even worse, candidates from disadvantaged backgrounds may be less prepared in this regard to contend for the promotion.

Dr. Fields explains that the missing key information is not just the type of knowledge tested by a multiple-choice exam:

• Generally, candidates need to know the key qualifications of the job they are seeking and the characteristics of the selection process.
• Once they are made aware of these important details, they will be able to ask themselves, “Is this the job for me?”
• If they then decide they want to pursue the promotion, they must ask, “How can I better prepare myself for the selection process and position?”
• In some cases, they may have to decide if they need additional assistance with converting the information into successful strategies for advancement.

Dr. Fields calls the impact of missing information on employment and promotion success “Limited Exposure Theory (LeT©).” She calls the solution to information barriers “Missing Information Analysis (MiA©).” She has measured and successfully proved her theories in several situations similar to the Jacksonville lawsuit, and she comments, “Knowledge gives people choices and a way to succeed!”

According to Dr. Fields, the right solution to this type of assessment problem may be time-consuming and expensive. However, the correct solution would be ‘win-win,” resulting in benefits for both candidates and the employer, because:

• Candidates would benefit because the right solution would invest in them and help improve their chances for advancement.
• The employer would gain a better qualified workforce.
• A fair and validated promotional system would also improve morale, reduce hostilities between different groups of people, and allow candidates to be fairly promoted. At the end of the day, establishing an unbiased promotional system is far less expensive than lawsuits, bad press and low morale.

Expert analysis for this article was contributed by Dr. Cassi Fields, President and CEO of D.C.-based Fields Consulting Group.

Dr. Fields developed the Limited Exposure Theory (LeT©), which suggests that those from disadvantaged backgrounds lack access to the vital information they need to gain employment or advance in their careers. Dr. Fields also created the Missing Information Analysis (MiA© ) strategy, which identifies information obstacles, methods to obtain that information, and strategies for converting newly-acquired information into effective behaviors for job acquirement or career advancement.

LeT© and MiA© have helped more than 10,000 people from disadvantaged backgrounds and women advance in their careers.

Fields Consulting Group has also pioneered the use of assessment center exercises to measure community-oriented policing competencies and has directed and administered hundreds of performance assessments to businesses nationally.

By Reut Schwartz–Hebron

Introduction

HR leaders are often responsible for perhaps the single most important component for orchestrating organizational change: overcoming resistance to change.

Resistance has many shades and colors. It may be direct and confrontational, passive, or even invisible. When people say – and even believe – that they want to cooperate but their cooperative attitude is not backed up by needed actions, resistance to change is likely involved.

Managers tend to look to HR executives to help them overcome change resistance in situations such as dealing with a difficult employee or supporting the goals of a strategic initiative.

Just as often, however, HR executives find themselves struggling to get a change-resistant manager to cooperate, or to get seemingly cooperative managers to actually execute needed changes.

While there are many change-resistance responses, some are worse than others. Here are the top three types of change resistance, along with why they are so difficult to overcome and some thoughts on what you can do about them.

Doubtful analyst resistance to change

This type of change resistance is exhibited as skepticism, dismissive behavior, argumentativeness and overall disagreement.

People who resist change in this way believe there is a very clear distinction between right and wrong, which creates rigidity and often leads them to treat others with superiority.

Doubtful analyst resistance blocks teams from optimizing productivity in many ways, but perhaps the most painful is the negativity that ultimately halts progress. Instead of focusing on what could work, or on how to build agreement, teams or individuals in which doubtful analyst change resistance predominates focus on what isn’t working and why others are wrong.

Example–doubtful analyst change resistance in an IT department

An example of doubtful analyst resistance occurred when a client in the security software industry was given the task of improving customer care levels in his organization’s IT department. His efforts met with glazed looks and dismissal. People in the IT department simply couldn’t see why customer care would have anything to do with them.

In their rigid viewpoint, that’s what customer service staff was for. It wasn’t in their own job descriptions. To them, prioritizing customer care above functionality didn’t make sense, and therefore they dismissed it and refused to cooperate.

Overcoming doubtful-analyst change resistance

Frequently, to overcome change resistance, one must address the way people resist. One of the most important changes doubtful analysts need to undergo is to “rewire their brains” to see reality from different perspectives, allow seemingly contradictory truths to co-exist. This way, they can see that their perspective may be right, but that doesn’t mean the perspective of those in the organization who are pursuing the change is necessarily wrong.

To generate a change in customer care values in the IT team mentioned above, the client first needed to support the IT team to engage differently with their change resistance.

Rewiring the brain to respond differently to something as fundamental as seeing different points of view is not trivial. It requires reinforcing relevant experiences to create new response patterns that are stronger than the old “dismissive” and “one sided” responses and must be supported by a deeper understanding of how the brain works.

The biggest obstacle getting in the way of people’s ability to change is learning to follow the stages the brain needs to go through in order to acquire new response patterns.

For people to change they need to learn how to go through five stages:

1. Define the goal of the change in a way that will motivate them, in this case the goal was new customer care behaviors and the motivation was to comply with the declared expectations of their superiors (people can change even if their initial motivation is more complacent than committed, but they need some motivation to get started)
2. Define the new experiences that will lead to desired results. For people to acquire new response patterns and change the way they respond to change, people first need to define new patterns in experience terms. The “intellectual” or “knowledge-based” definition of seeing that different points of view can be valid in principle is very different than the experience-based definition of being able to truly see different points of view as valid in a situation being personally experienced.
   The latter is acquired by working with an expert and reviewing examples and case studies. Initially, after sharing the knowledge-based definition, teams almost always have a hard time thinking of examples that are aligned with the new desired response pattern. At this stage, doubtful-analyst people find it almost impossible to give examples in which more than one point of view was valid because their mind is not wired to notice those examples. They must learn to be able to readily provide such examples.
3. Overcome resistance triggered by the need for change by practicing choices in actions that reflect the change, continuing to reinforce new patterns despite resistance. Resistance is actually helpful for change because without resistance there is no choice to do something differently and hence change is less likely to be permanent.
   At this stage, the task the team has to meet is kept small enough so that it is very easy to hold the team accountable and make sure they keep making little steps that reinforce in practice the new response pattern. It is this stage, reinforcing choice in action, that gives the brain the ability to make the new response pattern stronger than the old one.
4. Create Sustainability so that the acquired new response pattern won’t fade away. Old response patterns were reinforced in the brain for years. Each time teams practice a new response pattern it is further reinforced in the brain. The key to sustainability is creating enough experience based reference points so that the new pattern is strong enough to compete with old patterns.
5. Application is the fifth and final stage. Here the new response pattern, after it has been clearly defined and generalized in acquisition so it is strong enough to compete with old patterns, is now applied to the specific goals.

Once the team acquired new response patterns and thus became able to see and understand multiple points of view, specifically, that customer care was important to their jobs, it was able to execute on the new customer care values.

Emotional oscillator resistance

This type of resistance is characterized by an outburst of aggressive, overly dramatic, impatient, and exaggerated behavior, followed by withdrawal, as well as a tendency to jump quickly to action without thinking things through.
Add to this type a rich variety of control -driven manipulations designed to take the spotlight off the need to change.

Emotional oscillator resistance blocks teams from optimizing productivity mainly by:

• Not being open to discussing the needed changes.
• Refusing to accept feedback.
• Creating an environment in which a pushy minority dominate a submissive majority through fear-based dynamics.

Example– emotional oscillator resistance in a hospital

An HR executive in the health industry was trying to support a change in the behavior of the head of one of the hospital’s departments. This senior doctor’s teaching style and interpersonal interactions were described as: “demeaning, impatient, harsh, and directive.”

When presented with the need to make changes, the senior doctor claimed that the way other staff members described him was “ludicrous” – and that it was they who need to improve their performances, not he.

Overcoming emotional-oscillator change resistance

To create a breakthrough in results when working with emotional oscillator teams or individuals, one of the most important things to change first is the relationship these individuals are wired to have with control and responsibility.

Instead of trying to get things done by gaining and exercising strict control over other people, emotional oscillators need to develop the ability to influence other people with a more effective version of supervision and direction, which requires that they effectively listen and integrate other people’s needs into their considerations.

Since confronting emotional oscillators about relevant changes immediately and directly leads to mountains of change resistance, it’s important to first get them to develop and reinforce new patterns of responding to change using neutral examples and case studies.

Getting the senior doctor to cooperate was not easy. The key was focusing on a new way of responding to change away from any direct threat. To do that the goal is first defined with great honesty but in a way that provides a genuine benefit for both sides.

In this case, the leadership team was very clear about the complaints and their need to see improvement (it is vital to maintain honesty in this process, otherwise it feels manipulative and it won’t work). The main focus, however, was on the benefits to the senior doctor. Wouldn’t he want his team to meet his performance standards? If he could invest in a solution that would get both what his team wants and what he wants, would he be willing to spend approximately 15 hours over the next several weeks to achieve that?

Sometimes managers like this senior doctor are not willing to cooperate with this process. It’s said that you can lead a horse to water, but you can’t make it drink, and that is certainly true when it comes to getting people to change. This process isn’t designed to force anyone; instead it is set to make the environment ripe for change, making sure it’s a really hot day, letting the horse build enough of a workout, and making sure the water is clear and fresh, to follow through on the analogy.

As the senior doctor started seeing that new response patterns gave him effective tools for better achieving what he needed, he was able to let go of his old patterns. Once the new response to change was acquired, the senior doctor changed how he interacted with change and, as a result, how he interacted with people.

Pleaser resistance

We may think of pleasers as people who can easily change, because their motivation is to meet the expectations of others. However, nothing could be further from the truth.

Pleasers are extremely difficult to change; far more, in fact, than the other two types discussed above.

The motivation for change with pleasers is external, completely passive, and leaves the responsibility for choice to others (whom they will then follow in order to please them). Because pleasers are followers, they can’t be relied upon to implement changes in the face of resistance by others. If you try to get them to change their response patterns, they will happily cooperate -but changes they make will be short-lived unless everyone they try to please goes along with the changes.

Example– pleaser resistance in a small IT company

A CEO in a small IT company was looking to get his leadership team to change their communication patterns. He wanted them to be more assertive in holding each other accountable and setting healthy boundaries with clients to avoid over-promising service, and in building accountability in the sales team.

The leadership team openly discussed these issues. They admitted the need to change and seemed very cooperative , but their talk was not being followed by lasting actions. Team members were not changing, and leaders were passive and timid in the face of this inaction.

Overcoming pleaser change resistance

Pleasing teams can move away from this highly passive way of resisting, but they need to acquire a new way of responding that we call KindExcellence™.

This is an emotional ability to balance the need for connection and togetherness with the need to maintain boundaries and communicate expectations. To get the team to acquire this new response pattern, the team explored examples and case studies that are aligned with KindExcellence™.

As these case studies were initiated by the team and reinforced in the brain as new experience, the brains of team members literally started to create a new default response pattern.

In the case of pleasing teams, the need to maintain harmony becomes so important that it trumps assertiveness and expectations.

With this new emotional ability in place, however, after learning which steps the brain needs to go through in order to acquire change in a lasting way, in only a few weeks the leadership team developed the levels of accountability and assertiveness the organization was trying to achieve. The results in the team’s interactions with clients and with the sales team were most satisfactory.

Conclusion

There are, of course, many other types of change-resistance responses that block HR leaders from being able to provide the needed change support to both managers and teams.

Identifying which type of resistance to change is blocking either a team or an individual is an important first step so that you can know which strategy would best serve the situation.

Whether it’s getting people to acquire new values as part of a culture change, resolving a conflict, or getting teams to execute best practices, understanding the type of resistance you are facing and how to overcome it is of vital importance.

Reut Schwartz–Hebron is the founder of Key Change Institute (KCI) – a national organization that provides groundbreaking business performance improvement and strategy execution consulting services rooted in brain science and experience-based learning. KCI helps businesses overcome resistance to change and optimize productivity and profitability to achieve impactful, lasting results.

She is also the author of the new book The Art And Science Of Changing People Who Don’t Want To Change.

Introduction

Facebook, Twitter, and LinkedIn now appear to be the three social network sites set to lead the way with social innovation over the next few years, with no end to their ascent in sight. Of course, there are also relative newcomers like Pinterest and Facebook’s new aquisition, Instagram, coming on fast.

The participation of so many millions of people in these various social networks has had major effects on both the recruitment industry and job seekers.

Survey of employers on use of social network sites

The following video/slide show/infographic, originally published by Ciphr, shows the results of a recent survey of three hundred randomly selected employers that sheds some light on how recruiters are using social media today. The study was conducted by Reppler and Lab42.

(If, like me, you’re too impatient for video and want to just skim the information at your own pace, it’s all in bullets below the video. Otherwise, the video is quite pretty and has the added benefit of lots of bar graphs to help you visualize the results better.)

• 91% used social network sites to screen applicants. Of these:
  • 76% used Facebook
  • 53% used Twitter
  • 48% used LinkedIn
• Employers surveyed varied as to when in the recruiting/hiring process they look at social network information:
  • 47% right after receiving an application
  • 27% after an initial conversation with an applicant
  • 15% only after detailed conversations (i.e., interviews)
  • 4% right before making an offer
• 61% had rejected candidates, doing so for a variety of reasons based on information found on candidates’ social networking pages:
  • 13% for lying about qualifications
  • 11% for inappropriate photos
  • 11% for inappropriate comments
  • 11% for comments about a previous employer
  • 11% for poor communication
  • 10% for drugs
  • 10% for discriminatory comments
  • 9% for drinking
  • 7% for sharing confidential employer information
• The news, thankfully, isn’t all bad for applicants. The survey results also show that having a well-groomed and colorful network site page can actually work quite nicely to your favor, as 68% of surveyed employers hired candidates based on the following positive information on an applicant’s social networking pages:
  • 39% — a positive impression of an applicant’s personality based on their social network presence
  • 36% — profile supported the applicant’s claimed qualifications
  • 36% — profile showed the applicant’s creativity
  • 34% — profile contained good references from others
  • 33% — profile showed good communication skills
  • 33% — profile showed a well-rounded person
  • 24% — profile showed awards and accolades

A few social networking tips for applicants

Of course, we all enjoy posting silly photographs on our facebook pages, but people who do not know us personally may find them inappropriate, undignified, and worse–and that may hurt or ruin our job chances.

It’s therefore essential to have your facebook account set to a high degree of privacy–virtually all information for “friends only”–while searching out that dream job. If you have a lot of Facebook friends, you should probably also review the list and “unfriend” anyone who might disclose your information in a way that could harm your job search–such as a former coworker now employed by a company you’d like to work for.

Although these steps should shield your Facebook account against intruders who might damage your job opportunities, there’s little that you can do about your Twitter account. Many people therefore use two Twitter accounts, one for personal use and another for professional. Although both are easily searchable, most people use pseudonyms for some measure of privacy.

Information for this guest post, including the video, was provided by Ciphr, a provider of human resources software-as-a-service (SAAS). Recruiting Software from CIPHR can aid employers searching for the perfect candidate.

Introduction

Ask any manager, trainer, HR professional, or corporate coach what makes for a successful new hire and they will most likely tell you the same thing:

By the end of their first 90 days, successful employees know how to think critically, communicate effectively, solve problems, work on a team, speak before an audience, respect authority, and provide good customer service.

On the flipside, they would probably also say that new hires who are not successful have a lot in common as well:

By the end of their first 90-days, they still require a lot of handholding and supervision. They don’t manage time effectively, don’t ask the right questions, don’t work well with others, and don’t see opportunities in the midst of challenges.

In a perfect world, recruiters and hiring managers would be able to select the former kind of employee and avoid the latter. Then all new employees would be good fits. But, as we know, this is very often not the case. If you want to take all employees from new hire to peak performer, you’ve got to be prepared to do the work from the moment each new employee says “yes” to the job.

Here are 5 ways to create an effective onboarding program for new employees:

1. Begin day 1 before day 1

Employees put a lot of stock in the first day experience, particularly when they are Generation Y (which 50% will be by 2014).

To make the first day memorable rather than regrettable, aim to get compliance conversations completed in advance. By putting HR info, company history, and so forth into an online portal, you send a message that you respect employees’ time and free the first day up for job-specific activities.

However, because of the importance of this traditional part of an onboarding program, you should have a way to document that they actually reviewed the material, such as an online quiz to complete. And if they are non-exempt employees, this is part of their compensable working time, even if done on their smartphone while sitting on their back deck having a beer.

2. Create a knockout first day

Now that you have found additional time in your new employees’ first day, use it to make them feel welcomed and excited to be working for you. This doesn’t need to be complicated. Make sure that whoever greets new employees when they arrive knows their names. Assign an engaging first-day task. Ensure that new employees take lunch with co-workers they can bond with. And, perhaps most importantly, give them an opportunity to address any confusion or anxiety.

3. Communicate responsibilities clearly

When you set employees up to understand their roles correctly from the start, you enable them to be more self-directed, engaged, efficient, and happy. As a result, managers will be able to attend to their own responsibilities and lead their departments, rather than worry about their employees’ moment-to-moment, day-to-day performance.

While new employees will likely have some idea of their responsibilities from a job description and job interview conversations, as well as possibly from having served in similar positions in the past, each situation is somewhat unique, and communicating roles, responsibilities, and expectations is an important ongoing management responsibility, especially during the first days and weeks of employment.

4. Give feedback early and often

Psychologists and neuroscientists have concluded that it takes approximately 90 days to make a new habit – whether that habit is creating a plant-based diet, communicating effectively, or being productive in one’s role in a new job.

By the time most companies let employees know how they can improve, the employees have solidified their habits—good and bad. Therefore, good supervisors always give feedback that is timely and behaviorally specific.

5. Finally, turn mistakes into “teachable moments”

If you want employees to perform well, stay engaged, become self-directed, and move to their next level of success, you must consider yourself to be in the business of facilitating learning and growth.

In our still-fragile economy, too many new employees are terrified of taking risks, and as a result they create their own glass ceiling for performance.

Without management creating and modeling a culture where it’s okay to take calculated risks and sometimes fail, your new hires might be good in their roles–but they will never be great.

In order to institutionalize teachable moments into your new hire’s first 90 days—and beyond—begin by asking coaching questions to see if the employee can identify their mistake on their own.

If the mistake is something they wouldn’t recognize—for example, failure of a cash drawer to balance with the register—you may need to begin by identifying the mistake yourself. Then, staying in a coaching frame of mind, identify specifically with your new hire what can be learned from the mistake and focus on co-creating a lasting solution.

Conclusion

There’s a reason enlightened and progressive employers are paying more attention to the initial days and weeks of employment—now often called “onboarding.” It’s because what happens during this critical time period often makes the difference between a satisfied, productive employee who works well with others and a marginal or problematic one.

Alexia Vernon is a workplace communication and leadership expert who specializes in helping companies effectively recruit, onboard, train, and grow young professionals into peak performers. She has been featured on/in CNN, NBC, the Wall Street Journal, CBS MoneyWatch, FOX Business News, Forbes.com, and Mint.com.

Ms. Vernon is the author of the new ASTD Press book, 90 Days 90 Ways: Onboard Young Professionals to Peak Performance. To learn more about Alexia and receive her 7 Biggest Obstacles to Success and the Sinfully Simple Formula to Shift Them Into Opportunities, visit AlexiaVernon.com. You can also follow Alexia on Twitter @AlexiaVernon.com.

Introduction

Over the last month or so, there’s been a lot of buzz about employers requesting Facebook passwords so they can view social media information an applicant or employee has designated as private, for example, as “friends only.”

This follows several years in which the drumbeat of advice to wary applicants and employees has been to be careful what they post to social networking sites and to be methodical in reviewing and carefully setting the privacy controls.

Of course, it is hard to know just what might jeopardize an employment situation, and too much caution destroys much of the personal benefit gained from participation in online social networking. So for most Facebook users the easier answer has likely been to rely on privacy settings and not engage in too much self-censorship.

Now people are concerned their privacy efforts may come to naught because of nosy employers requesting Facebook passwords. And the concerns extend to all the friends of such a person, as their wall posts, etc., could also be disclosed through such a password disclosure.

Start with this video of a discussion of employers requesting Facebook passwords.

The issue of employers requesting Facebook passwords raises several questions.

1. How common is this practice?
2. Is it legal?
3. Is it wise for employers?
4. If legal, will the law change?
5. If confronted with such a request, how should one respond?

How common is the practice of employers requesting Facebook passwords?

Dawn Rosenberg McKay, the About.com Guide for Career Planning , says:

When I first heard that some employers were asking their employees and job candidates to turn over their Facebook passwords I thought that someone was making it up or at least exaggerating the extent to which this was happening. It sounded like such a huge invasion of privacy that I naively wondered how many employers would actually want to do it. Unfortunately I soon found out this was happening fairly often.

She does not cite sources, and “fairly often” is vague, but I imagine she has heard quite a bit of anecdotal evidence of employers requesting Facebook passwords.

A March 20, 2012 AP story cites some specific examples of employers seeking Facebook passwords or otherwise gaining access to private Facebook information:

• Justin Bassett “had just finished answering a few character questions when the interviewer turned to her computer to search for his Facebook page. But she couldn’t see his private profile. She turned back and asked him to hand over his login information.”
• “Robert Collins was returning to his job as a security guard at the Maryland Department of Public Safety and Correctional Services after taking a leave following his mother’s death. During a reinstatement interview, he was asked for his login and password, purportedly so the agency could check for any gang affiliations.”
• “Until last year, the city of Bozeman, Mont., had a long-standing policy of asking job applicants for passwords to their email addresses, social-networking websites and other online accounts.”
• “[S]ince 2006, the McLean County, Ill., sheriff’s office has been one of several Illinois sheriff’s departments that ask applicants to sign into social media sites to be screened.”
• “In Spotsylvania County, Va., the sheriff’s department asks applicants to friend background investigators for jobs at the 911 dispatch center and for law enforcement positions.”

A sneaky way for an employer to obtain access may be through a Facebook app (you know the “fine print” on apps saying what info will be disclosed?). According to the AP story, “Sears is one of the companies using apps. An applicant has the option of logging into the Sears job site through Facebook by allowing a third-party application to draw information from the profile, such as friend lists.”

The Ohio Employer’s Lawyer Blog expresses skepticism about how widespread this practice of employers requesting Facebook passwords really is:

If you believe all of this coverage, you would think that this practice is rampant. In reality, I would be surprise if one-percent of one-percent of all employers have even considered asking a job applicant for access to his or her Facebook account, let alone carried through on the thought by making it a hiring requirement.

I imagine that statement may be about on target–for now. But the publicity could be giving many more employers the idea, especially if legal experts can’t state definitively that it’s illegal.

Eric B. Meyer heaps on the skepticism, in a post entitled, “Relax! Businesses don’t want employee Facebook passwords.”

What I can tell you is that when I presented “Social Media for HR: Practical Guidance from a Generation Y Attorney” a few weeks ago to a packed house of HR professionals at the SHRM 2012 Employment Law and Legislative Conference in Washington, DC, no one in the room — not a single person — admitted to requiring job applicants to turn over private social media information, including logins and passwords. Most rolled their eyes or laughed at this “practice”. (Maybe 10% acknowledged accessing publicly available social media content, which is legal, to conduct background checks on potential hires).

Is it legal for employers to ask for Facebook passwords?

Facebook’s own position was posted by Erin Egan, its Chief Privacy Officer, Policy:

In recent months, we’ve seen a distressing increase in reports of employers or others seeking to gain inappropriate access to people’s Facebook profiles or private information. This practice undermines the privacy expectations and the security of both the user and the user’s friends. It also potentially exposes the employer who seeks this access to unanticipated legal liability.

The most alarming of these practices is the reported incidents of employers asking prospective or actual employees to reveal their passwords. If you are a Facebook user, you should never have to share your password, let anyone access your account, or do anything that might jeopardize the security of your account or violate the privacy of your friends. We have worked really hard at Facebook to give you the tools to control who sees your information.

As a user, you shouldn’t be forced to share your private information and communications just to get a job. And as the friend of a user, you shouldn’t have to worry that your private information or communications will be revealed to someone you don’t know and didn’t intend to share with just because that user is looking for a job. That’s why we’ve made it a violation of Facebook’s Statement of Rights and Responsibilities to share or solicit a Facebook password.

But according to an AP story, “Job seekers getting asked for Facebook passwords,” legal concerns may be overblown :

Giving out Facebook login information violates the social network’s terms of service. But those terms have no real legal weight, and experts say the legality of asking for such information remains murky.

The Department of Justice regards it as a federal crime to enter a social networking site in violation of the terms of service, but during recent congressional testimony, the agency said such violations would not be prosecuted.

Dawn Davidson Drantch, counsel for Alcott HR Group, cautioned:

[E]mployers must be cognizant of legal and regulatory issues when taking the social media interview to the next level, such as requesting log-in information: Appropriate consents, notices and authorizations should be given to and obtained from the applicant, and employers must not gain access to accounts surreptitiously or by coercion. Both may violate the law.

Further, labor and employment questions arise when using social media to evaluate a prospective employee…. [E]mployers must be careful about obtaining information which may be unlawful to consider in employment decisions such as: lawful off-duty conduct (e.g., alcohol consumption); information on protected classes (race, gender, etc.); arrests and certain convictions, and more, because it will be difficult to prove that this information was not considered in the hiring process.

The Proactive Lawsuit Prevention blog accurately and vividly describes the legal risks of exploring applicant social network information, whether publicly available or through acquisition of a password:

From a single profile photograph, a recruiter can guess a candidate’s gender, national origin, age, race, color and ancestry, among other things. From a user profile, a recruiter can guess about marital status and sexual orientation. From Facebook Wall postings or other blog postings, a recruiter can guess religion, medical condition or disability, or even genetic information. In doing so, a recruiter is open to allegations that hiring decisions are based on “protected categories” that federal and some state laws … prohibit as categories that can be considered in making a hiring decision.

The Ohio Employer’s Law Blog raised another legal risk:

At least one court has concluded that an employer who requires employees to disclose passwords to social media sites violates the federal Stored Communications Act, which extends liability to parties that exceed authorization to access electronic communications. While this area of the law might be unsettled, testing it could prove a costly mistake.

Philip K. Miles, III, spells out exactly how the Stored Communications Act could apply to employers requesting Facebook passwords:

In Pietrylo v. Hillstone Restaurant Group, the District Court of New Jersey applied it to an employer who accessed a forum using an employee’s MySpace login:

[The Employee] testified that she felt she had to give her password to [her supervisor] because she worked at [the employer] and for [the supervisor]. She further testified that she would not have given [her supervisor] her password if he had not been a manager, and that she would not have given her information to other co-workers. Furthermore, when asked whether she felt that something would happen to her if she did not give [her supervisor] her password, she answered “I felt that I probably would have gotten in trouble.” The jury could reasonably infer from such testimony that [the employee's] purported “authorization” was coerced or provided under pressure. As a result, this testimony provided a basis for the jury to infer that [the employer's] accessing of the [MySpace forum] was not, in fact, authorized.

Got that? An employer may be liable under the Stored Communications Act, where a supervisor pressures an employee in to handing over her password (and then using the password to access the service).

It’s pretty easy to see how this might extend to the job application process – if the applicant hands over her password was it “coerced” or “under pressure” so as to make subsequent use of the password “unauthorized?”

Eric B. Meyer notes that Facebook has relied upon the Computer Fraud and Abuse Act, which might be applicable to this practice. I’m not so sure, but it is at least a way for someone to plead their way into federal court, rather than state court, should they so desire.

Here’s a great video discussion of legal issues involved in employers’ Facebook password requests, putting the issue in the larger perspective of a general loss of privacy since 9/11:

Is asking for Facebook passwords wise for employers?

Peter Xenakis of Fuoco Technology stated that he often checks out promising candidates on LinkedIn and Facebook, using the latter “to validate an applicant’s resum&eacute.”

But as to asking for an applicant’s username and password, he said that’s going too far and he doesn’t want to intrude on private information. Xenakis said it “would set a bad expectation for potential hires to think we are Big Brother.”

Davidson Drantch suggested if an employer is to view Facebook or other social network information, it would be best to have do so initially using a nondecision-maker who filters out all unlawful or irrelevant information; to use a standardized, objective approach; and to consider limiting social media checks to LinkedIn “because that is a professional site, less likely to display information inappropriate to consider when hiring.”

This is sound advice. In addition to legal risks, there is a risk of alienating the most qualified applicants, those who will find it easiest to “just say no” and find a job elsewhere. Those who comply with an employer’s request for a Facebook password and are hired may enter the workforce with a sense of distrust. At a minimum, the employer should be very clear as to what it is looking for as a “red flag” (e.g., drug abuse, violent or racially hostile tendencies, inconsistencies with resume, etc.) and explain it has a system for ensuring other information does not enter into consideration.

Here’s what one of the largest labor and employment law firms, Littler, says about employers requesting Facebook passwords:

Although requiring employees or prospective employees to provide social media log-in information may be problematic, there are circumstances in which it may be important to do so. For example, an employer may determine that it needs the information to properly investigate a complaint that co-workers, supervisors, or vendors are using social media to harass an employee or to engage in some other work-related misconduct.

In light of the likelihood of new legislation and the internal and public backlash against employers that request or require social media log-in information, the best practice is simply not to ask unless the employer has a strong and legitimate business reason for doing so. Even then, the employer should carefully weigh the risks and implement measures to mitigate those risks.

Littler has an extensive discussion and suggestions here.

If requesting Facebook passwords is legal, will the law change?

Earlier this month, Maryland became the first state to ban the practice of asking for Facebook or other social network passwords:

The state’s General Assembly passed legislation that would prohibit employers from requiring or seeking user names, passwords or any other means of accessing personal Internet sites such as Facebook as a condition of employment.

Read the text of the Maryland bill here. There was a quid pro quo for employers, a section providing:

An employee may not download unauthorized employer proprietary information or financial data to an employee’s personal web site, an internet web site, a web–based account, or a similar account.

Regarding the Maryland law, Eric B. Meyer says:

What concerns me is that there are no carve-outs for public agencies that protect and serve the public. I can understand why a police department may need to fully vet its candidates by making sure that applicants and officers don’t have hate speech towards a particular protected class, for example, on their Facebook page. As I imagine that this information could be used to overturn arrests and indictments.

No doubt, a wide variety of other scenarios that might arguably justify an exception could be imagined.

Some enforcement or legislative action concerning employers requesting Facebook passwords may occur at the federal level (but given how precious little Congress is able to agree on these days, I wouldn’t hold my breath waiting for federal legislation):

In letters to the DOJ and the EEOC, Senators Richard Blumenthal (D-Conn) and Charles E. Schumer (D-NY) have called for a federal investigation into “a new disturbing trend” that has seen employers require job applicants supply their user names and passwords for social networking and email websites.

The press release on Sen. Schumer’s website says:

“I am alarmed and outraged by rapidly and widely spreading employer practices seeking access to Facebook passwords or confidential information on other social networks,” said Blumenthal. “A ban on these practices is necessary to stop unreasonable and unacceptable invasions of privacy. An investigation by the Department of Justice and Equal Employment Opportunity Commission will help remedy ongoing intrusions and coercive practices, while we draft new statutory protections to clarify and strengthen the law. With few exceptions, employers do not have the need or the right to demand access to applicants’ private, password-protected information.”

“Employers have no right to ask job applicants for their house keys or to read their diaries – why should they be able to ask them for their Facebook passwords and gain unwarranted access to a trove of private information about what we like, what messages we send to people, or who we are friends with?” said Schumer. “In an age where more and more of our personal information – and our private social interactions – are online, it is vital that all individuals be allowed to determine for themselves what personal information they want to make public and protect personal information from their would-be employers. This is especially important during the job-seeking process, when all the power is on one side of the fence. Before this disturbing practice becomes widespread, we must have an immediate investigation into whether the practice violates federal law – I’m confident the investigation will show it does. Facebook agrees, and I’m sure most Americans agree, that employers have no business asking for your Facebook password.”

If confronted with a request to provide a Facebook password, how should one respond?

Dawn Rosenberg McKay, About.com Career Planning Guide, says:

Unfortunately, many people feel they have no other choice but to comply with their boss’s or a prospective employer’s request. They can’t afford to lose their job or take themselves out of the running for a job offer.

But JibberJobber has simple advice: it’s just not worth it. It’s a very bad sign about the employer:

[I]f that’s how the relationship is going to start, it’s going to be abusive…. If someone asks me for something like that, I’d question their personal ethics, and wonder what kind of work environment they are in that would even allow such a question…. [Y]ou deserve better than to be in a hostile or abusive situation. RUN.

That may or may not be good advice. This is truly one of those “it depends” questions. How badly do you want/need the job? How dirty/clean is your Facebook likely to appear? What does the employer say if you first politely ask why–what they’re looking for?

Still haven’t had enough? Watch this video!