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Firms Throw Up New Hurdle: Unemployed Need Not Apply
Tony Pugh | Wednesday 16 February 2011
Washington - As if finding work weren't hard enough already, a federal agency warns that some employers are excluding jobless workers from consideration for openings.
The practice has surfaced in electronic and print postings with language such as "unemployed applicants will not be considered" or "must be currently employed." Some ads use time thresholds to exclude applicants who've been unemployed longer than six months or a year.
Evidence of the practice has been mostly anecdotal, and information about how widespread it may be is sketchy.
But with unemployment at 9 percent and millions of people struggling to find jobs, the practice has caught the attention of regulators, lawmakers and advocates for the unemployed.
"At a moment when we all should be doing whatever we can to open up job opportunities to the unemployed, it is profoundly disturbing that the trend of deliberately excluding the jobless from work opportunities is on the rise," said Christine Owens, the executive director of the National Employment Law Project.
Members of Congress contacted the Department of Labor and the Equal Employment Opportunity Commission last year to see whether the practice violates federal employment laws against discrimination.
While the unemployed aren't a protected class under civil rights laws, the practice could be legally problematic if it has a disparate or discriminatory effect on groups of job seekers who are subject to civil rights protections.
In a public meeting Wednesday at EEOC headquarters, several witnesses testified that excluding the unemployed from job openings could disproportionately affect African-Americans, Hispanics, people with disabilities and older workers — all federally protected groups whose jobless rates are well above the U.S. average.
Blacks and Hispanics are particularly vulnerable, said William Spriggs, the Labor Department's assistant secretary for policy, because they represent a large share of unemployed workers and a smaller portion of those with jobs.
"When employers exclude the unemployed from the applicant pool, they are more likely to be excluding Latinos and African-Americans," Spriggs testified.
Most seem to agree that the overwhelming majority of job postings don't contain such language. James Urban, a partner at Jones Day law firm in Pittsburgh who counsels large employers, testified that he's never dealt with an employer who wouldn't hire the jobless.
Listings that exclude unemployed applicants would violate terms-of-use policies against discrimination at Monster.com, which posts hundreds of thousands of job openings.
"We would flag that as a violation of our policy," company spokesman Matthew Henson said. He said the website screened listings for such problems.
Spriggs said the problem might still occur behind closed doors, without the explicit language. That's because employers are looking for ways to cut through large numbers of applications quickly. On average, there are nine job applicants for every two openings, he said.
Others suggested the practice reflects a bias that workers who were laid off aren't the most talented.
Joyce Bender, the CEO of Bender Consulting Services and an advocate for people with disabilities, testified that when she worked as a job recruiter, she often was asked to hire people from the competition rather than qualified unemployed applicants. She said workers with disabilities were having an even tougher job search because of this avoidance of unemployed applicants.
While jobless applicants might have "skills that are stale or obsolete" compared with employed candidates, screening them out isn't effective because it limits the pool of qualified workers, said Fernan Cepero, the state director of the New York State Society for Human Resource Management. He said the practice probably wasn't widespread because "the stakes involved are too high for that."
But Owens of the National Employment Law Project said her group routinely heard from older workers who'd been rejected for consideration because they weren't employed.
A 53-year-old Illinois woman who was laid off after 19 years as an information technology supervisor said a recruiter wouldn't send her on a job interview when he realized she hadn't worked for a year. A 44-year-old woman lost out on a pharmaceutical sales position because the job required that she be currently employed in the industry or have left it within six months.
Owens said that under the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967, it was illegal for employers to use practices that "limit, segregate or classify" individuals in ways that limited or denied employment opportunities based on race, gender, color, religion, ethnicity or age. Practices that seem nondiscriminatory could violate these laws if they have a disparate impact on members of these protected classes.
Urban said it would be hard to prove the disparate impact of excluding unemployed applicants, but Helen Norton, an associate professor at the University of Colorado School of Law, disagreed and cited examples of how it could be done.
"This practice raises questions and concerns under current anti-discrimination law that deserve attention," she said.
Although Spriggs said women were less likely to be hurt by the practice, Fatima Goss Graves, the vice president for education and employment at the National Women's Law Center, suggested otherwise. She said women — who disproportionately leave the work force to give birth or provide care to sick loved ones — could well face the problem.
The commission will gather more information about the issue and might, in time, provide guidance to employers about the practice and suggestions on how to avoid any legal conflicts in job postings.
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Several years ago Paul Craig Roberts had an article cross-posted, possibly initially written for, counterpunch.org. It was about the H-1B, L-1, and possibly some other Washington programs (visa, sort of anyway) for the importation of foreign workers. H-1B was used for hi-tech jobs, certainly computer programming, et cetera, but also for other jobs. And it was a racket greatly due to recruiting firms and AILA, the American Immigration Lawyers Association, the or some of the lawyers of which stood to profit plenty from very easy work.
In one of his articles about this racket used to very profitably substitute for the hiring of US citizens and permanent residents, he said that there were also some job recruitment firms with Web sites where they posted job openings, which often were for non-existent jobs, only seeking to build up their resume databases, well, they were posting openings while saying that applicants with H-1B and TN-1 (NAFTA) visas were welcome to apply, while applications from US citizens and permanent residents would be rejected. The latter was stated as, "Americans need not apply", clearly meaning that our applications would be found in the trash can or shredded as soon as received and read.
So I'm saddened about employers disregarding applications from the unemployed, but am not surprised.
That may be what the official, government-stated rate of unemployment is, but it's far from being reflective of the true numbers or rate, which is closer to 20% to 22%, according to people who understand how to properly determine the real rate.
Of course! And a lot of discrimination has been going on behind closed doors, i.e., secretly, for a long time. There's nothing new about this.
F.e., when it comes to wage discrimination, and I'm referring to back in the second half of the 1990s when I read about this, for the first time anyway, women were paid considerably less than men in the hi-tech jobs, computer jobs anyway. But one article that I had read was more specific, saying white women were paid around 75% of what white males got; Latino women were paid less than white women; and Black women were paid the least. It did not say whether non-white males were paid less than white males, but I believed that it probably happened then; and if it did back then, then it's likely that it continues.
Employers don't advertise or publicize this sort of information, because the above practice is illegal and unethical. It's blatant discrimination and clearly against EEO law. Equal Employment Opportunity includes wages or compensation, or certainly should. If it doesn't, then it's not about equal, equitable treatment. Similar work, similar compensation! Identical work, identical compensation! There might be a little exception for seniority and years of experience, but when two or more people do the same or similar work and are equally productive, including in terms of quality, not just quantity, then the compensation should be very similar or the same, depending on whether the work is similar or the same. It could be similar, but while one person is assigned greater responsibility, f.e.
It was illegal in the US for recruiting firms and employers to bring in foreign "temp" workers when there were qualified Americans available and applying; but it's easy to hide the latter fact. And, without exaggeration, a majority of, if not most, recruiting firms did this hiding; nationally. One method they used was to draw up a skills requirements list that NO one could possibly be qualified for, for NO one realistically could have all of the stated skills knowledge and experience. That scheme was used to deny Americans job opportunities, while the requirements secretly were greatly reduced for imported "temps", and H-1B was the favored scheme, because over half came from India and these people accepted extremely lowball compensation just to get into the US, after which they strongly networked together. They held demonstrations at or in front of the Congress to demand respect, et cetera; while Americans couldn't unite. Programmers in California had started on the path of forming a sort of programmers union in the 1990s, but I have no idea how far they got with this. I think the group was called "Programmers Guild" or "California Programmers Guild", but maybe that was about something else.
The "game" for recruiters was replacing the hiring of Americans with cheap imported labor in order to FATTEN their margins; quick and big money for recruiters, who often are hardly worth more than telemarketers.
There were recruiters who worked ethically, but based on my experience and the reported experiences of very many other American IT people, [most], by far most recruiting firms were mostly out for fast money using this H-1B program that they, and AILA, as well as employing companies, turned into a nationwide, as well as international, racket. It was also international, since they were importing foreigners on, initially anyway, temp. basis and using this against Americans who were equally qualified, sometimes having also more years of experience.
It's a RACKET that started with President GHW Bush and continues today, but we won't learn of it through most corporate media and I've never seen mention of it in so-called alternative media; except for articles by Paul Craig Roberts at counterpunch.org. The best resource I know of on the topic, however, is Professor Norman Matloff at UC Davis. Using his name and "H-1B" for search terms at Google, f.e., will turn up plenty of links, including for his UCDavis section on this topic. There used to be and possibly still is the "H-1B Hall of Shame" Web site, but a lot of "lefties" wouldn't like to read there, because, and not because of the editor(s) of the Web site, who only allowed people to express themselves, there at least used to be plenty of nonsensical ranting, rage, and, sometimes anyway, hatred expressed. Many juniors in the US treated the H-1B program as racist, instead of intelligently understanding that it was racket, money, and globalization. Those who raved about it being racist helped to turn other Americans, who were not IT professionals, against us all, as if we were all this stupid and blind.
There are always the clowns who can't "read" a situation for what it really is. They jump to nonsensical, reality-baseless conclusions faster than a spark can fly.
Like Paul Craig Roberts also says, the L-1 visa has been extremely abused. Among other illegitimate uses, it was sometimes used to import poor people to treat them as house slaves, possibly also for sex "trade", when all the poor person wanted was employment and fair wage, compensation, as well as fair treatment. Some people who hired poor foreigners using the L-1 visa, like for house maids, f.e., greatly abused these persons and some were caught. I believe they were also prosecuted, but they were at least caught, the government learned of what they were really doing.
I believe that he also wrote of another importation program visa, but am not sure, and Prof. Matloff also refers to the L-1 having been used for bringing in foreign "temps" for jobs that the L-1 is or was not supposed to be used for, if I'm recalling correctly. Either he or Paul Craig Roberts mentioned that the L-1 was sometimes used for jobs that the visa was not legally provided for.
People do a lot of illegal things behind closed doors, that is, in secrecy. Illegal things usually aren't done out in the open.
Washington can't justify its wars and global militarism, but since it can't, it constantly lies in order to try to deceive the public.
How many illegal things are done right out in the open, besides some pot smoker occassionally walking along the street while smoking a joint, f.e.?
Plenty of employers discriminate and they won't publicize this fact. And one other thing they criminally do, sometimes, that is, is to get an uncooperative, say, employee blacklisted in the entire industry that the company is in. F.e., say employee X works for employer Y and X hasn't done anything really wrong and has met production and quality requirements, but Y's management has developed a grudge against X; maybe because X conscientiously objected to something wrong that management was doing or had done. So Y wants to unjustly and unnecessarily fire X. Y does that and X is back out searching for employment, and will normally look for work with other employers in the same industry.
If management at Y really wants to be bad, the managers, high-level ones anyway, in American corporations know managers in "sister" corporations, and they talk; over the phone, at parties, business conventions, et cetera. Word is spread that X is to be blacklisted and it's what happens, but there's no tangible proof of this, because it's all through word of mouth and very strict internal policies or communications to only management people having anything to do with hiring, so screening of job applicants.
Life's made easier in Canada for Canadian employers. They can give former employees negative and bad references during job searches and there's nothing the job searcher can really do about this. The US, or US states (not sure if it's federal or state-level law), has the "Right to Work" law; unless that's just a colloquial appelation. But what it says, or what it said in the 1990s anyway, was that no employer, or else no one at all, has the right to do or say anything that prevents a job searcher from landing a job that the person would get an offer for, if a bad or negative reference had not been received about the person. If the person has a criminal record, then employers can find out about this directly from government. But employers don't have the right to impede job searches by former employees or workers and it's an important, essential law; because negative references can be very unjust, they can be based on invalid evaluations because they were incomplete and/or partial, or because of personality frictions, f.e. If the former employee is not unqualified for another job due to criminal records, say, then no employer (past) has the right to harm the former worker's job search efforts.
Well, that crap happens.
Recruiters working at recruiting firms and who know for a fact, while also having accumulated evidence, that Americans have been blatantly denied recruitment possibilities in order for the firm or other recruiters in the firm to bring in cheap labor in order to fatten profit margins could make the honorable choice, which is to speak out and testify in defense of denied Americans. But such honor and courage are hardly to be found. It's probably never happened from recruiters.
A lot of dirty sh*t that's illegal happens and "Corporate America" rules, so expect a lot of the dirty sh*t that happens to be happening there.
This post and Tony Pugh's article only scratch the surface.
That's very normal, usual practice. It's always been this way. Employers have LONG preferred to hire applicants currently employed, over unemployed applicants. That the latter are qualified doesn't matter, if both are qualified, and if the currently employed applicant is less qualified, then this often won't matter, as long as the person is sufficiently or very close to sufficiently qualified.
It can be very weird though, for an unemployed person who is qualified is, well, qualified, and why the person is unemployed can be for very good or legitimate reasons. It could be due to mergers and related layoffs, cuts. And it could be because the person was wrongly dismissed, which can happen even when a less qualified and less productive peer was privileged, didn't do or complete his or her work, and the unemployed person had done his and a considerable portion of what was supposed to be the privileged person's work. I know for a fact that the latter can happen; knowing it first-hand.
If management had done the auditing to see who was behind and who wasn't, then they would've found that I did a lot more; because I did the audit and tabulated the stats myself. But didn't feel like the job was really worth fighting to keep, so chose to let the management stay on its course of incompetence and lying, rather than telling them about what a real audit showed. It's only banking, they were wrongly paid more than I was, and I knew what the proper project management required of a manager while they didn't.
It was only a computer job in a bank, which is no big deal, and I wanted some serious work, so accepted being cut because of their incompetence-based lie about being a half day later on a task that I had estimated would take only two days. Being only a half day off is no big deal at all in computer programming jobs. Being weeks and months off, now that becomes an issue. But I did my half of the work the peer was supposed to be the other contributor to, for his half, he didn't want to do it, I did half of his half without being informed that I was also doing his work, and did other program development. He sat back and played with the screen saver and he's the one who told me when the axe was being dropped on me that he had not [felt] like doing his share; just didn't feel like doing it. He had much less education and much less computer programming experience in terms of real programming, but he was privileged, for some weird reason.
I could've sued, if I had known about the relevant law at the time, which I didn't, but didn't care to continue to do programming for some bank. Engineering environments are far more to my liking and I subsequently got two jobs at engineering corporations; far better than the boring world of banking.
Because of my own audit I only asked management whether the US ruled under the old Marie Antoinette or the "innocent until [proven] guilty" law. They smiled, but either didn't wake up, didn't realize the essence of what I said, or there was real favoritism going on. It was the sole defense I chose to use, figuring that if they didn't realize what I was essentially saying about their lack of proof, then they were either dumb, or it indeed was a matter of favoritism, which is an injustice that could only be resolved in a court of law.
But employers preferring to hire applicants who are currently employed, as opposed to qualified people who are unemployed, is normal to me. It SUCKS; and I also know this first-hand. But it's been common for a long time. And favoritism is also not new, at all. It's surely a practice that's ages old, as old as employing people for jobs has been happening, so ancient times.
Unemployed applicants being able to sue:
If the labor related laws in the US haven't changed over the past decade, then job searchers can sue in some cases when they're qualified for jobs and haven't been interviewed, while the person who is hired isn't more or better qualified. I remember having read a little about this back in the 1990s, but don't recall the details of the story and related law. It's surely EEO law, but I don't recall if this unemployed person was more, better or equally, or sufficiently qualified. However, the story did say that the person was qualified enough that he or she definitely should have received an interview; or if the person had received that and did it, then it was about the person being better qualified than the person who was hired. How this unemployed job searcher was able to find out that the hired person wasn't better or was less qualified, I don't know.
An unemployed person who is better qualified than an employed applicant who gets the job while the former didn't even get an interview might make it possible for the former to sue, based on EEO. And maybe this is also true if the unemployed person got an interview, but not a job offer, when more qualified than the person who did get the job. If they're equally qualified, then the unemployed person ideally would get the job offer, but I don't know that there's any law about this and doubt that there is one.
These are things or example situations to look into when finding out what the laws say and permit. But, EEO law surely (?) does not discriminate or underprivilege unemployed job searchers.
Being able to sue, however, also has statutes of limitations and I don't know what they are, but for suing for retroactive compensation, I think the statute says maximum six months, after which kiss retro. good bye. The person would still be owed, but no court would accept the case. It's very important to know about [all] of these laws before it's too late to be able to make use of them in a court of law.
And the statutes law apparently doesn't, but should allow for people who did not know about the laws within the statutes of limitations period, as well as for people who were in circumstances in which suing could jeopardize their job searches. Once a person sues against a former employer, the person is going to most likely become blacklisted in the whole or else much of the industry the person was working in and this, alone, can be enough to cause some or many people to not want to pursue former employers for what's owed. A person unjustly treated and who finds him- or her-self unemployed due to this injustice could sue, but realizing that doing that could or likely will make finding similar work extremely difficult, sometimes impossible, the person chooses to take the loss (for now) and just seek similar work; trying to avoid secret blacklisting. If that person succeeds in that decision, then great, but if the person ends up long-term unemployed, being constantly refused job interviews for similar jobs and the person is well qualified for them, then the law should permit the person to be able to make use of the laws regardless of statutes of limitations.
Perhaps a lot of workers don't know about these laws at all and the laws should not be so strictly and restrictively applied that they don't permit individual circumstances to be taken into ethical consideration. But, apparently anyway, the laws only permit recourse for an extremely restricted time period, after which, kiss justice good bye.
That doesn't apply in the hi-tech industry and it's one of the principal reasons that hi-tech employers love the H-1B racket. With years of experience, hi-tech professionals usually cost more to employers, compared to hiring H-1B and other foreign "temps" who are young and relatively young, and when there aren't enough of them, then young professionals who are US citizens and permanent residents. Even if an older and experienced American is willing to accept less for compensation in order to get work, most employers wouldn't know this. Instead, they blindly treat Americans similarly.
How much a person received, before, and how much a person is asking for or demanding now, at any time, is not specified in job applications, not in hi-tech anyway.
Such discrimination happens to hi-tech professionals, computer ones anyway, in the early 40s, but I've also read about it sometimes happening to professionals in their 30s. In the 40s, however, for sure and plenty. By that time, the person will generally have ten and more years of experience and is considered to be someone who won't accept anything near entry-level compensation.
Professor Matloff also informs readers about this.
A person could add "Rate or compensation open to discussion", f.e., on the resume, but the resume will reveal the years of experience, technical details about the experience, and the person is surely still going to be perceived as someone who'll demand more than low compensation; as low as junior-experience candidates would accept anyway. But it's the only way that I know of someone with senior, say, experience being able to [possibly] dis-alarm employers enough to at least be offered an interview or receive a telephone call. Older folks, and, in hi-tech, this includes people in their 40s, need to be ready to accept compensation that's lower than what a person might expect if employers weren't doing everything they can to reduce compensation.
A big problem in the US, however, is that corporations outsourced recruiting to recruiting firms. Unless job searchers know managers at employing corporations and can contact these managers in search of work, searchers will usually be required to go through recruiting firms and that's BAD news, though not really news. It's been going on for nearing two decades. This permitted corporations to downsize their HR departments, I guess; but I don't know how it saves them money. In some cases, hiring managers at employers really employing people are friends with owners or high-level managers in recruiting firms, and there's a "scratch my back and I'll scratch yours" or some other payback relationship involved.
Many recruiters in recruiting firms knew diddly-squat about jobs and skills, besides their charlatan bs. For computer jobs, extremely few recruiters knew anything at all about computer work, besides playing around a little with MS Word and possibly Excel, f.e.; and they knew little about those applications. They mostly received skill set requirements from employers and then sought candidates with these skills; very simple keyword matching.
The EEO Commission should look into all of this. There's a lot that's been going on for a long time and the article by Tony Pugh is good, but doesn't reveal anything new to me.
He should really interview Professor Matloff and read his articles at UCDavis, as well as learn from what's reported from what Prof. Matloff at other Web sites. It's simple to find all of this by using "Norman Matloff" and "H-1B", f.e., for search terms.
If many older unemployed American workers are having serious difficulty finding work when there are openings, they apply, and they have good qualifications, then the H-1B, L-1, TN-1, and possibly other importation programs are probably being used when they shouldn't be. Often, if not usually, older workers who are qualified will do the work better because of experience. They generally should have more to offer than junior-experienced people do. That may not be true for multimedia software development, f.e., but should generally be true. And [mature] management knows this, but that's the other lacune; a lack of mature, brave and ethical people in management.
Another, but very different problem, is when unemployed workers live in areas where there's little to no demand for their experience, skills, knowledge. This has been a very serious, probably the most serious, impediment for me, given that I lacked finances for relocating to places where I might and should have been able to find work without too much delay. F.e., my years as a computer programmer, et cetera, were mostly on UNIX systems. Many localities don't have markets for this experience, many being mostly focused on Microsoft Windows. And if we don't have finances for relocating when we're single, then we likely don't have the ability to pay for more schooling for re-training, say.
I knew a chartered accountant who had worked locally for years, but this ended and to be able to continue to find work, he had to take a job two hours away, driving. He did that for a while and finally landed a job locally doing something completely different from before, working as a UNIX systems administrator. I don't know how he got that job, but maybe he had taken a course or two for this sort of work, or maybe it's through family or friends. As an accountant, however, it seems that he would've needed to work further away than he had been doing, if he wanted to continue to do this kind of work and further wasn't "his thing".
So there are definitely the employer problems due to wrongful hiring and dismissal practices, but there are also other job market problems.