Legalese

Hiring and Employment: Change is Here

By Kristen Harris

Growth is one of our company values at Portfolio Creative – we are always learning, improving, and adapting. In the spirit of growth, I recently attended the American Staffing Association’s Staffing World Conference. It’s important for us to stay on top of employment and hiring trends so we can provide the best possible service to our clients and talent.

Here are the highlights of what we heard at this year’s conference.

Top Five Trends:

  1. Gig Economy and Free Agency. Depending on which report you read, something like 30-40% of the workforce today is “independent” or part of the “gig economy.” While there is not a clear definition of these terms, we can all agree that the era of having a job at the same company for thirty years is long gone. Most people in the workforce today think like free agents, choosing their work opportunities based on what interests them and where they can best deploy their skills. Technology is enabling a sea change in how and where people work. More than ever people are able, interested, and willing to work independently. This may mean finding work through an app or platform, having multiple less-than-full-time jobs that feed different interests or taking on contract roles and projects that leverage their skills.

  2. The Robots are Coming. There is some fear around robots “replacing” humans in jobs, but the reality is probably less dystopian. Yes, robots and artificial intelligence will become part of the workplace. Actually, it’s already here–you’ve probably used a self-checkout station at the grocery, ordered lunch at a kiosk, or know about driverless cars currently doing test runs. What they can’t and won’t replace are the types of work that require what truly makes us human. Work that is creative, innovative, emotional, or requires decision making and problem-solving. Some of us remember when graphic design required hand-drawing graphics and rubbing down perfectly space type; now we have computers to help us execute our creative ideas, but they can’t create the idea for us.

  3. The Millennials Are Here. Honestly, I don’t like categorizing people solely by their birth year, and Millennials are pretty much tired of everyone talking about them like they are alien beings; but the reality is that the balance of our workforce has shifted. There are more Millennials entering the workforce and more Boomers retiring daily. The Millennials, being such a large generation, are literally changing the workforce and society. We are in one of those rare eras where older people are becoming more like younger people, instead of the other way around.

  4. Google and Amazon – Part 1. We live in an Amazon and Google-driven world where there is quick access to products, services, and information 24/7. Quick access used to be novel and exciting; now it’s becoming the norm and soon will be an expectation. Amazon’s ability to provide near-immediate access to products and Google’s dominance in gathering and utilizing data will drive how business is done across most industries. To a large extent, life is happening on a smartphone. These two behemoths are re-shaping expectations of how services are delivered, how work gets done, how jobs are found, and how people are hired. Not to mention the impact they have on the communities where they are located (238 cities put in a proposal to woo Google’s HQ2 to their city), and it’s clear the impact Amazon’s facilities have had on hiring in Central Ohio.

  5. Google and Amazon – Part 2. In this Amazon and Google-driven world everything (and to some extent, everyone) is being rated. How many stars do you have? How many reviews? How many Facebook friends, LinkedIn connections, or Instagram followers? When you’re doing a good job and creating quality, take the effort to get credit for it. People pay attention to both the quality and quantity of online ratings, crowdsource information and referrals, and judge others by their online presence. Creepy? Maybe. Unfair? Perhaps. But this is the world we live in, so learn how to participate in a way true to you and your values.

The biggest threat to any industry, business or career is inaction. If you are not creating, innovating, and developing new ideas, rest assured someone is. Don’t fear being disrupted, be part of the disruption.

Employment Law: What You Don’t Know Can Hurt You

By Kristen Harris

Legal and legislative issues around human resources, hiring and employment are constantly changing. I recently attended the American Staffing Association’s Staffing Law Conference or, as I affectionately refer to it, the “How to Not Get Sued” conference. It’s important for us to stay on top of these issues to protect ourselves, our clients and our talent, and attending this conference is one of the ways we do that.

Knowledge is power, so we want to share the top issues that may be of concern to our clients. Please keep in mind that we are not attorneys, and are only providing this as an informational resource. If you have questions or concerns about any of these issues, please consult with your legal counsel. Top Five Employment Law Issues:

Background Checks – Disclosure

While it’s common for companies to use background checks as part of their hiring process, there are two current issues surrounding background checks. First, ensure that your background check disclosure and authorization documents are compliant with Fair Credit Reporting Act requirements. There is an uptick in litigation claiming that candidates were asked to sign disclosures with “extraneous” information, including the authorization, violating the requirement that the disclosure be a standalone document. Have an attorney review your forms, and re-review annually as what is acceptable may change based on litigation.

Background Checks – Adverse Action

The FCRA requires a two-step process employers must follow when taking adverse action based on a background check. There are now additional requirements that employers must follow, generally at the municipal level, around informing the person of the reason they are not qualified and how that reason is job-related. Requirements related to adverse action have recently been put in place in San Francisco, Seattle, Maryland counties, Chicago and New York. Check with your attorney on whether there are any state or municipal requirements in your location.

Ban the Box

Gaining traction over the past few years, there are now ‘Ban the Box’ laws in 25 states and several additional municipalities. Generally, these laws prohibit having a checkbox on an employment application asking if the applicant has ever been arrested or convicted of a crime. Employers are not prohibited from asking about a criminal background, but these laws are specific about when you can ask (and when you can’t). Every statute has specific rules and penalties; consult your attorney for specifics.

EEOC Enforcement Guidance

The Equal Employment Opportunity Commission released consolidated enforcement guidance regarding the use of arrest or conviction reports in employment decisions. The goal of this guidance is to avoid disparate impact on minorities, even when following consistent screening practices. The overall consideration is whether the reason a person has been denied employment is related to the job or is a business necessity. Items of consideration are the nature of the crime, the time elapsed, whether there was a conviction or just an arrest, and the nature of the job— whether there is a link between the criminal record and the essential functions of the job. Consult your attorney and guidance documents available from the EEOC.

Data Breaches

This speaker told a cautionary tale about data breaches...“You’ve either had a data breach, or are going to have one. Or have had one and don’t know it.” Yikes! The point being, in our technology-driven world, data breaches can and will happen. It’s big news when a company is hacked by an outsider, but a lot of breaches happen due to mistakes. Something as simple as sending certain information via email to the wrong recipient could be considered a breach and trigger notification requirements. Train your team about the risks and common scams, and put processes in place to help protect your data, such as restricting user access to only what is necessary for the job and frequent forced password changes. But also know your state’s requirements on notification in the event of a data breach, and have a plan in place. It’s like insurance...you hope you never need it, but if you do, you’ll sure be glad you have it.

The best way to protect yourself is to stay informed and proactive. Review policies, ask questions, and resolve concerns before they become an issue.

Snapshot we took at the 2017 American Staffing Association’s Staffing Law Conference.

Snapshot we took at the 2017 American Staffing Association’s Staffing Law Conference.

If you are a Portfolio Creative client and have questions about these topics, or anything else related to our dual responsibilities of hiring and employing talent, please contact us at HR@portfoliocreative.com.

If you are not a client and would like more information on how these topics may apply to your creative staffing or recruiting processes, contact us at contact@portfoliocreative.com

For more information related to hiring, staffing and employment, the American Staffing Association has valuable resources for both employers and employees. 

Freelance Prediction: The Future is Now

By Kristen Harris

Freelancing is the future, and it’s here now. Looking at both the current state and future predictions in the American workforce, freelancing is going to continue to grow.

First, a definition: Whether they’re called freelancer, independent contractor, contingent worker, self-employed, free agent, gig worker, or something else, there are a lot of people working outside of a traditional full time employee/employer arrangement. Although the work arrangements may vary, for simplicity, these people are often lumped together under the category “freelancer.”

Depending on which report you read, somewhere between 34-40% of the American workforce today is freelance. That number keeps growing year after year, and is predicted to reach somewhere in the vicinity of 50% by 2020.

Whether you think this is a good thing or not totally depends on your perspective. There are a lot of advantages to freelancing, including schedule flexibility, variety in the work, and a feeling of independence. There are also advantages for companies hiring these freelancers, including the flexibility to scale up or down based on company needs, and the ability to hire for a specific skill set short-term.

There are also some negatives. Freelance work is less predictable, may not be considered a traditionally secure job, and often includes limited or no benefits. This is especially true for certain groups of people included in this total freelancer group, such as on-call workers, independent contractors who basically are running their own small business and need to find their own customers, and part-time workers.

For the companies hiring freelancers, workers may not be as committed to the company’s cause, there is still a talent shortage for certain roles, and often, premium rates are charged to offset the short-term nature of projects. From a legal and HR perspective, it’s also difficult to track and manage all of these different work arrangements.

Recently, this legal area has been particularly concerning. Rulings against large companies like FedEx and Uber regarding their use of independent contractors have caused them to re-look at their work arrangements. Also, over the past several years, more resources have been dedicated to investigating employee misclassification (non-qualified 1099s) at both the state and national levels.

There seems to be a disconnect between predictions for the future of the American workforce (more freelancers) and current government regulations (more employees). Whether you think the growth of freelance work is the wave of the future or the scourge of the universe probably depends on where you sit. But these arrangements will continue to flourish as long as companies and individuals feel the benefits outweigh the negatives. The challenge will be in finding a way to reconcile company and freelancer needs with government rules. Welcome to the future!