Quick Hits - February 21, 2018 - American Society of Employers - ASE Staff

Quick Hits - February 21, 2018

Silver medal recruiting taking hold:  Employers focusing on silver medalists are becoming winners. The term isn’t just for Olympians: It’s what some employers call job candidates they almost hired but passed over for someone else. Now, as companies struggle to fill jobs in a tight labor market, many are tracking, courting, and hiring their so-called silver, and even bronze, medalists.  “Before, those candidates tended to fall into a black box,” says Kurt Heikkinen, chief executive of recruiting-technology firm Montage. Now, he says, “companies are asking: How can they quickly pivot and find a fit for them somewhere else in their organization?”  In a 2017 survey of more than 800 U.S. recruiters and hiring managers by recruiting-software firm Jobvite Inc., 88% said they had tapped silver medalists to fill jobs. The year before, 59% said they made a point to keep in touch with and consider such candidates. Further, the growing attention from employers has taken the sting out of barely losing out on a job for some. Cambrie Marks says she was initially disappointed after interviewing well but losing out on a job managing a portfolio of customer accounts as a customer-success manager at Rainforest QA last August. Two months later, the software-testing startup snapped her up for a different role.  Source:  The Wall Street Journal 2/14/18

Google’s firing of engineer who questioned Google’s diversity practice found lawful: A lawyer with the National Labor Relations Board concluded that Google’s firing of James Damore, the author of a 10-page memo arguing that the gender imbalance in the tech world had an immutable basis in biology, was legal. As reported by the New York Times, Damore’s NLRB complaint was filed before he was fired by Google last August. Damore claimed that his memo was an attempt to address a workplace issue, a category of action that includes strikes and lawsuits and is protected from retaliation by employers.  The NLRB memo’s author, attorney Jayme Sophir, agreed that “much of” Damore’s missive was likely protected, but found that portions of it that were discriminatory provided legal justification for Google’s firing of him. “Employers have a strong interest in promoting diversity and encouraging employees across diverse demographic groups to thrive in their workplaces,” the decision read in part. “In furtherance of these legitimate interests, employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace.’” The NLRB memo was issued on January 16 but was not made public until last Thursday. Source: Fortune 2/18/18

NLRB wants your take on misclassification as automatic NLRA violation: Four months ago an Administrative Law Judge (ALJ) ruled that independent contractor misclassification, by itself, can be an unfair labor practice, in violation of the NLRA. Last week, the National Labor Relations Board decided to revisit the issue and posted a public invitation for any nonparties to file briefs on the issue, arguing why misclassification should be — or should not be — an automatic unfair labor practice or, if not automatic, under what conditions misclassification should be considered an NLRA violation. Briefs are due April 16, with response briefs due April 30. Any organization or business can weigh in by filing a proper legal brief, even if they have nothing to do with the case that is being reconsidered. The Board seems to think that the ALJ’s decision may be wrong, and the Board wants to reconsider the ruling, taking into account all points of view. With a soon-to-be-Republican majority Board (as of today, it’s 2-2 and the 3rd R is waiting to be confirmed), it is reasonable to expect that the ALJ’s ruling will be grounded.  Source: Baker Hostetler LLP2/19/18

Apprenticeships may be answer to hard-to-fill jobs: Ms. Terenzio, founder of Boulder-based software-development company Techtonic Group Inc., found one of her most surprising hires after she gave a talk to prospective computer programmers at a vocational school.  The young man she hired wasn’t a student. He was a school employee who had helped to set up coffee and snacks at the back of the room. He had never graduated from high school but had taught himself some programming. That hire became one of the models for how Ms. Terenzio now approaches recruiting: looking for potential along with basic or transferrable skills. As she looks to bring in 40 apprentices this year, she gets excited when she meets candidates like the workers from the local Verizon retail store. “They’re trained in the soft skills of customer service, but they also have some technical training,” she says. Employers, educators, and policy makers are wrestling with the question of how best to transfer workers’ current skills into digital-ready skills and then rapidly prepare them for new opportunities.  Source:  The Wall Street Journal 2/15/18

New disability regulations may impact executive compensation: Beginning April 1, 2018, new disability claim regulations may apply to some executive compensation arrangements. Overall, the Final Rule is designed to ensure that claims for disability benefits are evaluated in a transparent and impartial manner. If the Final Rule applies to an executive compensation arrangement will depend on (1) whether the particular executive compensation is subject to ERISA and thereby ERISA's claims procedure requirements, (2) whether there is a disability payment trigger under the executive compensation arrangement and (3) how the disability determination is made under the executive compensation arrangement. If the executive compensation arrangement contains language giving the employer, a committee, or a specific individual the authority to make a disability determination that will trigger a payment from the plan, then the arrangement will then be subject to the requirements in the Final Rule.  Source: McDermott Will & Emery 2/14/18

Unintended consequence of new tax law – higher divorce rate:  Although last week we celebrated Valentine’s day, it may be that more marriages may breakup before a new tax provision takes effect in 2019.  The new tax law changes how alimony is treated in 2019.  Spouses paying alimony won’t be able to take a deduction while spouses receiving alimony will no longer have to report it as income if they divorce in 2019 or later.  Eliminating the deduction could also push the alimony payer into a higher tax bracket.  Therefore, HR should plan for a possible “surge” in qualifying events for employees to take on company health care throughout the year.  Source:  ABA Journal 2/6/18

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