What are Protected Classes?

Protected classes — also sometimes called protected characteristics — come from anti-discrimination law. We talk about them with respect to employment laws, but they also come into play in housing and education.

The classes and characteristics protected by federal law include race, color, age (over 40), sex, sexual orientation, gender identity, pregnancy, religion, disability, national origin, ethnic background, genetic information (including that of family members), military service, and citizenship or immigration status.

While you have a lot of leeway to make employment decisions as you see fit, you are prohibited from making decisions based on a person’s inclusion in any of these protected classes. Refusing to hire or promote someone because they are over 40, gay, or from Mexico, for example, would be considered unlawful discrimination under federal law. Many states also have their own anti-discrimination laws that protect additional classes.

The best way to avoid discrimination is to base employment decisions only on factors that are job-related. We recommend including the full list of protected classes in your employee handbook so that everyone is aware of them.

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When You Need to Hire Workers, But Nobody Likes the Work

Some jobs are just plain unpleasant. You know the type. Monotonous tasks that don’t end until it’s time to clock out. Dealing all day with customers who are unhappy, unappreciative, or rude. Fielding nonstop complaints. Hard labor. Outdoor work in extreme temperatures.

You can convince people to take these jobs when they have no other choice. But right now, for a variety of reasons, they do have other options. The avoidance of undesirable work is one reason why half of all small businesses are unable to find workers right now. 

Pay raises and other perks haven’t always done the trick, either. This has left many employers with no good way to incentivize job seekers to apply or convince dissatisfied employees to stay. After all, the work is the work, and there’s nothing to be done about it, right? 

Not necessarily.

Employers have some control over what the work is, how it’s done, and under what conditions it’s done. Not limitless, of course, but there often are ways to make unpleasant work more bearable, if not genuinely exciting.

If you’re among the half of small businesses struggling to fill positions, and you haven’t had any luck with other measures to entice applicants to apply, consider what changes you could make to the work you need done or to the overall work experience at your business. Here is a set of steps you could follow:

Step 1 – Identify the Unfun Parts

Create a list of all the unpleasant aspects of the job you’re having trouble filling or keeping staffed. Include both the work itself and the conditions under which it’s done. Try to be as comprehensive as you can. You won’t be addressing everything you write down, but the more things you can include, the more you’ll have to work with. If you’re not sure what to include, consider an anonymous poll of your employees or review job descriptions and mentally walk through the day-to-day tasks that are required of your workers.

Step 2 – Determine What You Can Change

For each aspect you’ve written down, determine whether it’s something you can directly change, indirectly do something about, or if it’s entirely out of your power. You don’t need to come up with changes or solutions at this stage. Just note whether it’s something you have some control over, however little that may be. For example, you can’t change the weather, but there may be things you can do to make extreme temperatures more bearable.

Step 3 – Think a Little Harder About What You “Can’t” Change

Now that you’ve categorized the job aspects, reevaluate the items you indicated you had no control over. Give each one some thought and challenge your assumptions. Do you really have no options as far as these aspects are concerned? Keep an open mind and take some time later to think about them. You also may get ideas when you’re implementing other changes later.

Step 4 – Brainstorm Improvements

Now think about what changes you could make. Don’t worry about the logistics or the costs just yet. Here you’re just considering options. For example, if you’re worried that extreme temperatures are keeping job applicants away, you might look at uniforms that offer more comfort, additional or longer breaks, and ways to provide shade or cover from the elements. If the work is emotionally taxing, you might consider easing up on performance metrics, providing longer lunches, or allowing employees the flexibility to step away and decompress when they need it.

Increased freedom and flexibility might be another option. Standing desks for those who want to stretch their legs. Seats for cashiers who would prefer to sit. Ergonomic headsets for those on the phone. A second computer monitor for those who have to stare at small print. Job sharing to minimize monotony. Customer swapping to stop harassment.

Employees also appreciate knowing that their employer has their back and won’t put up with their being mistreated by customers. Posting notices about acceptable behavior and giving employees permission to step away from an abusive customer can really help in creating a psychologically safe workplace.

Step 5 – Do a Cost-Benefit Analysis

Any change you make is going to have a cost. In this step, do your best to estimate the implementation costs and analyze whether the cost is worth the benefit. That may not be clear right away. If your solution to physically or emotionally taxing labor is additional paid breaks, employees will be spending less time working. Less time working could translate into assignments taking longer to finish or fewer orders being completed. Then again, well-rested employees may be more productive, able to accomplish more in a shorter period of time. Time will tell.

To conduct a cost-benefit analysis, compare the estimated costs of making changes to the costs of having a labor shortage or higher than average turnover. Consider too that there are no guarantees the changes you make will be successful. You’re taking a risk, but the bigger risk may be in doing nothing. It could be a while before the labor market becomes more favorable to employers.

Step 6 – Make the Changes

Depending on your situation, you may decide to try all the changes at once or one at a time. The latter may be more helpful if you want to be able to measure the success of each change, but the former may have a bigger impact in the short term.

Step 7 – Advertise the New Awesomeness

Shout from the rooftops. For some, this step will be the most challenging. Your employees will immediately notice the changes you make, but job seekers won’t. You need to tell them. Talk up the efforts you take to make the work experience more pleasant. Share photos on social media. Most importantly, tell a compelling story in job ads, your careers page, and everywhere else job seekers can find you.

Stories can be a powerful and effective way to change behavior. In your case, you want job seekers to take a job today that they were unwilling to take yesterday. You have to convince them to cast aside their doubts and believe in you. A well-told story can be very persuasive.

The story you should tell is not about you, however. It’s about them. About the experience they’ll have. Definitely don’t sugarcoat that experience. If the work is rough, they’ll learn soon enough. But sharing what you’ve done to make the work less taxing tells job seekers that you care about your employees and want them to have a good work experience.

Step 8 – Evaluate the Outcome and Adjust Accordingly

Did the changes you made help? Were you able to fill open positions and keep them filled? How do your employees feel about the steps you took to improve the work experience? If you’re not satisfied with the results and they’re not satisfied with the changes you made, think about why and discuss solutions with your employees. What could have been done differently? What surprised you?

This process will take some trial and error, and there’s no guarantee it will work, but it is an option to consider if the jobs you need done aren’t especially attractive and measures like pay increases haven’t gotten you more applicants.

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The Struggle to Hire and What Businesses Can Do About It

If you’re finding it difficult to hire employees, you’re not alone. Bloomberg reports that many small businesses are struggling to find people who currently want to work—in fact, 42% say they have jobs they can’t fill. The number of people quitting jobs right now is also higher than average.  

One culprit is likely COVID-19. For reasons related to the pandemic, a number of people are choosing not to work right now. They don’t want to risk getting sick, they have children at home, or they may be able to get by for now on unemployment insurance.

Some small businesses with positions to fill have turned to gimmicks like signing bonuses and free food, but these recruiting tactics are unlikely to be effective long term. They don’t address the risks, challenges, and needs people have right now. 

Fortunately for employers looking to hire, the problem of people choosing not to work isn’t fundamentally different than the problem of people choosing to work somewhere else. In both cases, the would-be employer has to convince prospective hires that working for them is better than the alternatives, and then they have to live up to those promises.

To be sure, those who choose not to work are missing out on many benefits. A job provides not only a paycheck, but also opportunities for employees to do meaningful work, contribute to their community, make friends, develop skills, receive training, advance their career, and fund their retirement. If someone isn’t working, they’re missing out on these and other opportunities. Employers may be able to leverage these benefits to appeal to those who have removed themselves from the workforce and convince them that work is worth it.

Safety, Flexibility, and Pay

Before employers can use benefits like friendship and skill-building to lure applicants, they must first address safety, flexibility, and pay; in a hierarchy of employment needs, these are foundational.

While vaccinations are proceeding at an encouraging rate and all adults are now eligible, COVID-19 remains a serious threat. It will be some time before people getting their shots now develop immunity to the virus, and they may worry about infecting friends and family who are unable or unwilling to get the vaccine. Because of these fears, some people aren’t going to work, period, and there’s nothing employers can do to persuade them. Others, however, may be open to working if they feel confident enough that the job won’t put them or those they care about in danger.

Flexibility is another key component for many potential applicants, much more so now that in-person school and childcare have become scarce. Since younger children cannot be left to fend for themselves while parents are at work, something has to give. Employers that provide flexibility—either through the initial scheduling of shifts or the ability to rearrange working hours on the fly—will likely receive more applicants and have a lower rate of turnover.

Other potential employees may be willing to work if they feel the pay is worth the risk and sufficient to cover the costs of working (transportation, childcare, insurance premiums, etc.).

Of course, most businesses don’t relish the idea of paying employees higher-than-usual wages, but there’s good reason to believe that increased pay is a good investment, especially for people in traditionally lower-paying jobs. When people are preoccupied with bills, debts, and other forms of scarcity, they tend to be less productive and make more mistakes. But, when scarcity isn’t taxing their mental bandwidth, they’re able to be more productive, make fewer mistakes, and increase business profitability. Increases in pay can pay for themselves. 

Career Development Opportunities

It may be that the positions an employer needs to fill don’t come with an exciting career path or teach the kind of skills that employees are likely to put on future resumes. But that’s not set in stone. Both the employer and the employee choose what skills are learned and used in every position.

Imagine, for a moment, a local deli that needs to hire a person to take orders at the register. The job market might consider this job “low skill,” but the owner of this deli doesn’t think of the job that way or advertise it that way.

Now, the owner doesn’t use the gimmick of giving the job a fancier title than what it entails; instead, they set the job up to provide skills training for more advanced positions in customer service or sales. In the first few days, the new hire will learn the menu and the layout of the register, but then, in the lulls between rushes, they’ll learn techniques for talking to customers, de-escalating tense situations, upselling, and the like—training that people in customer service and sales would expect to receive. Later, the new hire might even learn some of the ins and outs of starting and running a small business.

This owner knows that high employee turnover is simply the nature of the business and that employees will, sooner or later, take their training and skills to other jobs. And that’s the point. The aim here is to cultivate a reputation in the community as an excellent place for customers to grab a meal and an excellent place for employees to start learning marketable skills they’ll use throughout their careers, increasing the size of both the applicant pool and the deli’s profits.

Attractive Job Postings and Hiring Processes

Poorly written job postings can prove a serious obstacle to getting applicants. It’s important, as Katrina Kibben reminds us, that recruiters and hiring managers understand what they’re looking for in a new hire and write job postings that are simple and effective. 

If an employer offers some or all of the benefits discussed above, they should showcase them in their postings with concrete examples and as part of an engaging story. For instance, instead of the deli owner writing, “We teach valuable skills,” they can explain that downtime will be filled with instruction on sales and de-escalation techniques. And instead of saying, “We offer flexibility,” an employer can advertise that employees have of a range of shifts to choose from on a weekly basis, or will be able to complete their work at any time of day, so long as weekly deadlines are met.

But no amount of training opportunities will mean a thing if a business’s hiring process is a chore for applicants to get through. The more minutes it takes to complete an application, the more applicants will decide it isn’t worth it. The longer a candidate has to wait for an offer, the more likely they’ll turn down that job offer—sometimes, as Adam Karpiak illustrates, even when they don’t have another job lined up.

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HR Tip of the Month – Primary Beneficiary Test

Employers should use a test — called the primary beneficiary test — when determining if a worker can be properly classified as an unpaid intern or if they need to be classified as an employee and paid at least minimum wage and overtime. Before hiring an unpaid intern, employers should consider the following:

  • The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee.
  • The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  • The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  • The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  • The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  • The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  • The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

No single question will disqualify the worker from being classified as an unpaid intern. Instead, the employer should look at the answers as a whole. If in doubt, do not classify the employee as an unpaid intern.

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