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Getting back to work: A state-by-state analysis

BY Brae Canlen

A recently released report by IHS Global Insight shows how far away U.S. states are from peak employment and the distance each one must travel to reach pre-recession job levels. According to U.S. regional economist Steven Frable of IHS Global, only four states have been able to reach or surpass their previous employment peaks. All four are beneficiaries of the current energy boom: Alaska, North Dakota, Texas and Louisiana. Some states, though — notably New York — are less than 1% away from reaching peak employment.

Other states have a long way to go, according to the analysis: 16 states still have fewer than 95% of their pre-recession job levels. Alabama, Arizona, Florida, Michigan, Rhode Island and Nevada are behind previous peaks by 7% or more.

Frable expects almost half of the United States to achieve peak employment in 2012 to 2013, while the other half will not recover until 2014 and later. Nevada, Michigan and Rhode Island will not recover until past 2017.

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Home prices continue to fall in Case-Shiller Index

BY Brae Canlen

Housing price data from the S&P/Case-Shiller for March 2012 showed year-over-year declines for both the researchers’ indices, a pattern that has continued over the past several months. The 10-City Composite declined 2.8%, and the 20-City Composite was down 2.6%.

All three headline composites (20- and 10-City Composites, plus the national composite) ended the first quarter of 2012 at new post-crisis lows. The S&P/Case-Shiller U.S. National Home Price Index, which covers all nine U.S. census divisions, posted a 1.9% decline in the first quarter of 2012 over the first quarter of 2011.

Five cities — Atlanta, Chicago, Las Vegas, New York and Portland — saw average home prices hit new lows. Phoenix posted the largest annual rate of change (+6.1%), while home prices in Atlanta fell the most over the year, down 17.7%.

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Dissent over criminal-background checks

BY Allen Smith

A former general counsel of the Equal Employment Opportunity Commission (EEOC) disagrees with its recent guidance to not ask about convictions in employment applications.

“A few jurisdictions ‘ban the box’,” that asks whether an applicant has any prior convictions, noted Don Livingston, now an attorney with Akin Gump in Washington, D.C. “In those jurisdictions, employers are barred from asking about criminal convictions at the application stage of the hiring process.”

But he added that, “in other jurisdictions, it is sound business practice to seek information at the outset of the application process that is important in screening applicants. This includes information about criminal convictions that are manifestly job related, such as a history of theft for someone seeking a bank teller position or a history of sexual crimes for a job in a high school. So, I do disagree with the EEOC ‘best practice.’ ”

Livingston remarked that “the later in the hiring process the employer delays asking job-related questions of the applicant, the greater the cost to the employer of making hiring decisions.”

Alternatives

One alternative to not asking about convictions on all applications is to have different applications and different questions relating to criminal history for different positions or job classes, according to Pamela Devata of Seyfarth Shaw in Chicago. “The EEOC’s guidance seems to indicate that what criminal history question employers should ask should be tailored to the specific job in question,” she remarked.

Devata added that “Since the guidance is not binding, employers are not required to remove questions about criminal history from their employment applications. However, given that the EEOC is the administrative agency charged with enforcing Title VII, employers should evaluate what information they ask in relation to the position in question and when they should ask it. We are advising employers to consider asking about targeted criminal history convictions based on position or job class later in the hiring process to address the EEOC’s concerns.”

Devata noted, “Employers could ask an applicant about his or her criminal history later in the hiring process — for example, during the interview.” She added that “employers should be mindful that there are state laws that have restrictions about what they can ask, even if they are asking about criminal history later in the hiring process. For example, Massachusetts, California, Connecticut and [some] other states have restrictions on what information an employer can ask about, and we recommend that employers never ask about sealed or expunged records to comply with the number of state laws that also have that prohibition.”

Yet Devata remarked, “Because the EEOC has said that removing criminal history from the application is a best-practice recommendation, but not a mandate, and has provided some guidance to limit criminal history questions, it likely would be able to argue that it has not overstepped its statutory authority. However, there are many who have expressed that they think the EEOC has overstepped its authority.”

No rush to remove box

Katharine Parker, an attorney with Proskauer in New York, said that “assuming they are not in a jurisdiction that prohibits questions on applications about convictions, employers need not rush to remove a box inquiring about prior criminal convictions on their application forms.” But she added that “employers should review their application question and determine whether it is appropriately tailored for their business and the positions for which it is being used and to ensure it is compliant with current state and local law. For example, an employer can consider whether it is appropriate to limit the question to particular types of crimes or crimes that occurred within a specific period of time.”

Parker stated, “A question about conviction history on an application form does not preclude individualized assessment. Indeed, an employer may expressly state on its application that a conviction is not an automatic bar to employment precisely because it intends to engage in an individualized assessment after the applicant reports that he or she has previously been convicted of a crime.” 

Relevancy of criminal history

“The $1 million question” according to Barry Hartstein, an attorney with Littler in Chicago, is how employers can determine if criminal history is relevant and what kinds of questions would or would not have a nexus to job duties. “The EEOC does not provide any real guidance for employers. There may be some jobs in which it is obvious, such as the conviction of theft within a period of years, and hiring a housekeeper.”

But Hartstein added that “what may be relevant or have a close nexus may vary depending on the work environment.” He noted that he “recently had a discussion with one client that operates business hotels and resorts that cater to families. Certain disqualifying criminal offenses for the same position may vary, whether it is a typical business environment as compared to a resort in which children may be running around.”

“The key,” Hartstein said, “is for the employer to be thoughtful in its approach and consider documentation justifying the rationale for specific exclusions.”

Allen Smith, J.D., is manager, workplace law content, for SHRM.

Have HR-related questions and concerns?  Get access to essential forms, policies and guides, plus a live call center, at ToolkitHR.com, powered by HCN and the Society for Human Resource Management (SHRM).

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