Are your RPOs, Temp Staffers and Recruiters violating Federal Laws?
In a recent SHRM article, the 7th U.S. Circuit Court of Appeals ruled Aerotek, part of the nation’s 4th largest $10+Billion staffing firm, must comply with a subpoena from the EEOC requesting records for 62 of its offices back to January, 2009.
During ongoing inquiries Aerotek revealed hundreds discriminatory client requests for temporary workers, but claimed the subpoena was unnecessarily disruptive, disproportionate and only part of a “fishing expedition” by the EEOC to review Aerotek’s employment practices. The court said, “the EEOC’s broad subpoena powers were not limited to individual claims” and had the power “to make investigations and require the keeping of records necessary or appropriate for the administration of the federal civil rights statute.”
As an employer, contracting with a staffing or RPO firm, these firms become the employer’s paid representatives and are bound by the same laws governing the employer’s operations. A more interesting conundrum exists if an employer uses and/or hires a contingent recruiter’s candidate(s) who uses discriminatory practices having a disproportionate effect on protected classes of workers. Companies employing and outsourcing to these firms are responsible for ensuring their representatives comply with the same laws and policies governing you, the client company. This means the employer’s legal liability could extend down the chain to the staffing and RPO firms; and, the staffing and RPO’s legal liability could extend up the chain to the client employer. In the Aerotek case, the subpoenaed information could lead to legal action, not only against Aerotek, but also their client(s).
For years staffing firms, recruiters and retained executive search firms have ignorantly or blatantly broken employment laws, acting and operating as if they were above the law, and, admitting it. Actual LinkedIn posts tell how they “regularly break some of the rules [laws] all the time [for their client’s needs]”; use LinkedIn pictures in age-bias selections; or, use selective key words to skew selection processes toward the “desired” workers and away from protected classes of workers, among other tactics. Admitting they “did not hesitate to ask a woman about her view of men, marital status, children, family life and age [and]…. If a woman or minority is not open about both her/their professional and personal life she/they will not be a candidate.” One retained search executive even posted, “if that is discrimination then sue me”….. It is, and the EEOC or DOL may do just that.
Neither Employers nor their HR departments have had to deal with this level of enforcement for decades and are, in general, unaware of today’s legal reality. Past decades of lax- or non-enforcement of statutes does not mean it won’t happen. The preceding is but one of thousands of complaints investigated annually, and, doesn’t even include private civil actions. During this same period private sector union representation fell to 5-6% from the 35- 38% of the 60s and 70s. With current EEOC, DOL and NLRB enforcement, along with current and pending legal changes, employers find themselves in the ignorantly vulnerable position of being part of the 70 to 90% of all employers who violate DOL, EEO and NLRB Law. This probably means your company and/or your staffing, recruiting or even retained search firms.
I, and many others, have written about these issues for years: Culture: Belief vs. Actuality; more detailed Feds Gone WIld; Why Do Stuck Wages Affect Business Growth; U.S. worker protections in today’s workplace; How We Got Here; A Labor Day Story; Why we have employment laws and where those laws stand today as well as Is Your Applicant Tracking System (ATS) or Resume Scanner Legal? As the co-founder of Washington Search Partners, we proudly support equality and comply with federal, state and local statutes. We conscientiously protect both our clients and candidates from such actions and voluntarily offer and sign non-discrimination agreements.
The greatest tragedies are not the employer, staffing or RPO firm who through ignorant or willful violation of the law gets investigated, sued, settles or are found guilty and have court imposed penalties and fines. Neither is it the unbelievably costly endless years of stubborn legal battles heaping legal and staff time costs to the final fines and penalties imposed on the offending employer. Nor is it willful violation of the law that carries double or triple damages, a situation Aerotek could find themselves in. And, finally, it is not the probable end of these firm’s client relationships and/or how other current and future clients will view that firm from these proceedings and outcomes.
The real tragedies are, in order to add a few dollars more to their bottom line, employers and/or their staffing and RPO firms have chosen to believe they are/or were right in discriminating in their employment practices and/or violating DOL, EEO and NLRB laws to the millions of workers who have had to endure these practices…for decades. No settlement can ever make up for a worker’s lifetime of reduced wage abuse and/or employment discrimination and the long term negative effects it has had and will have on those worker’s, their families, earning power, health, well-being, their retirement and, ultimately, our nation’s overall well-being.
Yet, many of these same employers wonder why they have a talent gap and can’t attract and/or hire quality people.
This is but one small wake up call. Ask questions, pay attention, correct problems or don’t. It’s a choice.
Ignorance is never a legal defense and willful violation of the law is never legally defensible.
The DOL, EEOC and NLRB have a job to do.