Employed or Unemployed? That Is NOT the Question.

On April 25th, Huffington Post reported on a recent law passed in New Jersey in March that prohibits job postings that may be discriminatory in nature. Who are these posts discriminating against? The unemployed.

Any job ads that specifically exclude those still unemployed will be deemed unfair by the state. In greater detail the statute:

Forbids an employer or employer’s agent, representative or designee from “knowingly or purposefully” publishing a job advertisement containing one of three types of provisions:

That being currently employed is a job requirement;
That the employer will not consider or review job applications from those who are currently unemployed; or
That the employer will only consider the applications of those currently employed.

One example includes Sony Ericsson’s post stating, “no unemployed candidates will be considered at all.” Those caught with such ads will be fined $1,000 on first offense and $5,000 - $10,000 on any following violations.

The news of the law has offered a variety of responses. Some say the legislation is laughable and recruiters will find a way around reviewing unemployed applicants while others think the legislation is laudable and the right step towards further decreased unemployment rates. Since it’s still early, results have yet to show the statute’s direct impact. Other states are also jumping on this bandwagon. New York submitted the same type of legislation on May 3, 2011.

A big complaint is that the law will force recruiters to sift through a lot more resumes. I should say, recruiters using applicant tracking systems shouldn’t be affected as they will be able to search based on skill set regardless of if the person is employed or not. But for those not leveraging technology, resumes could grow exponentially and without the right number of staff to handle it, HR processes and resources will be strained.

As for my two fluffy cents - I personally think it is unfair to exclude perfectly qualified people based on the fact they have been out of work for a while. Especially, since I know many bright individuals who have struggled to find work solely due to the job market and not their skill set.

Even if you don’t live in New Jersey, you may be dealing with this legislation in your own state soon. How do you think this will affect or not affect your recruitment process? What are your thoughts on the ruling?

Comment by Richard Cialone on May 20, 2011 at 12:31pm: Mario, if an unemployed person is not able to reach the consideration stage, how in the world does an employer make the informed decision about who is qualified? The fact is that companies are part of the social ecosystem. If they should be as free as you suggest, let's ditch all discrimination laws. I wonder how you would feel if you applied to a job for which your skills are perfect, and which provides you the type of work environment you've been trying to get into, only to be told that the company will not consider any candidates named Frank.

Comment by Valentino Martinez on May 20, 2011 at 12:36pm: @Mario--does an employer's rights include the right to discriminate?

Comment by Keith Plesha on May 20, 2011 at 1:32pm: I don't understand how this law will change anything other than how a company writes/posts a job description. It's not like because this law exists that employers are going to be hiring an exponential amount of unemployed candidates. Are they legally bound to phone screen a certain number of unemployed folks per month? How is this enforceable other than skimming job descriptions on job boards? Technical roles for example are much more skill oriented -- tangible skills like coding languages, use of specific SW or HW, ect. -- and will remain more skill oriented than intangibles like how long a candidate has been out of work or that "warm fuzzy" feeling. They either have the skills or they don't. However, for technical contracts, the max length we looked at for someone being out of work and still eligible was 6 months unless they could demonstrate that they had been taking classes or keeping their skills up with home made projects. I think the main reason for not looking at those unemployed is ramp up time...especially if it's been over a year. There are plenty of things that a candidate can do while unemployed to leverage their skills, but most don't do anything other than feel sorry for their situation (I know this is a slightly ridiculous generality). Do you really believe that a candidate that hasn't had a job in 3 years is just as qualified as someone who has been employed over that same timeframe in the same type of role?

Comment by Paul Alfred on May 20, 2011 at 1:56pm: @Keith ... "Do you really believe that a candidate that hasn't had a job in 3 years is just as qualified as someone who has been employed over that same timeframe in the same type of role? "

And this is the problem we need to address head on ... Perceived value ...

Comment by Keith Plesha on May 20, 2011 at 2:15pm: @Paul: You seem to face the same issue but in opposite regard...perceived value in ALL that apply. Just because someone applied doesn't make them a good candidate. I'm not talking about ruling people out immediately because they don't currently have a job. That's just idiotic. I will, however, put someone the back burner if they haven't worked in several years as candidates with recent experience have just that; recent experience. I'm saying there needs to be more emphasis on the particular candidate...if they haven't been actively engaging their skills when they are out of work, they will lag behind. Not to mention that my job is essentially determining someone's potential value or "perceived value"...I don't have to interview someone to understand who they are to a certain degree.

Another issue is that those that have been out longer are stretching their skills beyond what they are capable of. They will apply for jobs they are unqualified for and typically have no business applying for. Sometimes it's necessary to take a step back if you have been out of work for awhile and not expect to be competitive in the same role they were once in (mainly looking at those that have been out of work for 3 years or so).

Comment by Keith Plesha on May 20, 2011 at 2:19pm: I ask again, how is this legislation accountable and enforceable? Is this just an attempt at a paradigm shift in the recruiting process? Should this be more of an ethical issue than a legislative one?

Comment by Paul Alfred on May 20, 2011 at 2:34pm: Keith you miss my point ... I am not in disagreement with you - the point I am making is how is it perceived in the eyes of the Hiring Sponsor .... Solve that problem is what I am getting at ....

Comment by Keith Plesha on May 20, 2011 at 3:25pm: @Paul: Thanks for the clarification...I thought you were going in the opposite direction with that comment!

Comment by Sandra McCartt on May 20, 2011 at 3:26pm: Keith you are correct that the candidate who has been watching captain Kangaroo and eating Fritos for three years is certainly less hirable than one who has been working for the obvious reasons. The IT area is more legitimately effected by "current on skills" probably more than any other verticle unless they have been in classes, doing IT projects on a volunteer basis or have been tested for current certifications. They have to put that on the resume to offset some of the blank space. Other verticles not so much. If a sales person had proven numbers but hasn't been able to find a job in his niche he is more between successes than a techie i think.

As to your question about legislation. All that will do is take that crap out of the ads. Legislation can not take it out of anyone's mind. I think it is up to candidates, recruiting and HR people and peers to influence hiring managers. Some who have never been in a position to be unemployed much less unemployed for a long period of time have absolutely no frame of reference to know what can and does happen to people.

I have just recently had a situation where a Sr. Executive made the statement that He felt they should never hire anyone who had been laid off...not even unemployed but laid off even if it were yesterday..because he knows...knows that unless a company completely shuts down they lay off the bad ones or the ones with problems and keep the good ones. There was no point after speaking with him for over an hour to continue to try and change that deeply ingrained a thought process. Even if i were able to and got him to hire someone who had been laid off and had been unemployed for a period of time the poor guy getting hired would be like a bug under a microscope.

I think we have to start with the ones who can be influenced. The legislation will only perhaps start to make a big point that it is no longer "fashionable or appropriate" to rule out the unemployed. If it makes people think or rethink their biases, then it's a start but it won't get anybody hired if the attitude can not be changed. The only way to change it mythinks is to get people in front of somebody, market it ourselves and start with a nudge.

As Frank or whoever that was said, "Business has a right to hire who they want." And that is exactly what they do no matter what laws are passed. It takes time and effort to change discrimination of any kind. Sometimes better achieved by just making it "tacky" and "dumb" in the eyes of those around them gets a lot more milage than saying.."You Can't do that, it's against the law". But. "Against the Law" can be a good way to get somebody's attention then splain why and fallacy that led to the passing of the law.

Comment by Keith Plesha on May 20, 2011 at 3:42pm: @Sandra: That HM that you referred to has a very interesting thought process...and by interesting I mean ridiculous! A lot of the folks laidoff were top performers and their salaries were a necessarily expendable in the short-run. The effect of losing a top performer usually surfaces in increments as time goes on. To me, it's really hard to blame someone for getting laidoff, but it certainly doesn't give them a free ticket to interview.

Maybe it's more pertinent to have a discussion on whether "Unemployed" should really be a protected class. I certainly don't think it should be, but I also don't agree with blatantly advertising that your company won't look at those who are unemployed. Some companies simply aren't in a position to "take a risk" when hiring someone.