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Welcome to the The Point, PTCMW's new Blog - a replacement of our quarterly Newsletter.

Articles will be posted here throughout each month comprizing of long time standbys, new additions, and updates from the president and board.

As members, please feel free to post your comments and thoughts in relation to each article.

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  • 11/19/2018 9:54 AM | Anonymous

    Authors: Ryan O’Leary, Brian O’Leary, & Cliff Haimann

    In a recent review for the International Personnel Assessment Council (IPAC), Ryan O’Leary and Brian O’Leary wrote about various court cases that are relevant to HR professionals and I/O psychologists. Their overview is below along with additional updates about the EEOC and OFCCP.

    The Supreme Court

    Class Action Cases

    China Agritech, Inc. v. Resh. China Agritech manufactures and sells farming products. It began listing shares on the NASDAQ in 2005 and in 2011 issued a public financial filing that resulted in several lawsuits. A market research company reported that the filing made grossly inflated claims of China Agritech’s revenue and value. Shareholders sued for having been misled and China Agritech faced a series of class actions. The third was by filed Resh (after the first two) and has relevance for employment law. The issue in this case was whether Resh could take advantage of a tolling rule, a rule allowing more time to file a case. If not, the Resh case would have been filed too late and would have to be dismissed. In a unanimous decision, the Court ruled that the filing of a putative class action (a lawsuit brought by one or more named plaintiffs on behalf of a potential group of similarly situated individuals [known as a class] who allegedly suffered a common claim) does not toll (i.e., pause) the statute of limitations for follow-on class action when class certification is denied. In other words, this means that plaintiffs may not resurrect a failed class action by filing another class action after the limitation period has expired.

    In this decision, the Court distinguished its precedent from two earlier cases (American Pipe and Construction Co. v. Utah, 1974; Crown, Cork & Seal Co. v. Parker, 1983) which held that the filling of a class action does toll the limitations period for individuals who are seeking to intervene in the suit or to file their own individual claims after class certification is denied. Legal analysis suggests that these two rulings were meant to encourage class action cases. Class action cases generally help the courts save time and money. As such, courts would rather hear one big case on the same issue than many, smaller individual cases on the same issue. If there is a class action going on that would include an individual’s claim but the individual is considering otherwise filing an individual lawsuit, the individual can wait to see how the class action turns out – the time period during which one must file is paused (i.e., tolled) while the class action is ongoing. Court efficiency appears key and class actions which save the court resources should go first. Individuals are encouraged to see what happens in the class action case before pursuing their individual claims. Class claims should be ruled earlier and the Court will not allow class claims to be filed later.

    As it relates to employment law, in their opinion the Court noted that following the denial of nationwide class certification in Wal-Mart Stores, Inc. v. Dukes (2011) (the class of approximately 1.6 million women who claimed gender discrimination in pay and promotions at Wal-Mart which was denied certification because they did not have enough in common), numerous plaintiffs had either amended the original complaint to repeal subclasses or separately asserted geographically regional subclasses within the limitation period. The China Agritech, Inc. v. Resh suggests we may see future plaintiffs file multiple parallel complaints raising different possible putative subclasses with employers moving to stay the subclass actions until the court resolves whether to certify the larger class.

    Epic Systems Corp. v. Lewis. In May 2018, the Court ruled that companies can use arbitration clauses in employment contracts to prohibit workers from banding together and taking legal action over workplace issues. This means that employees who sign arbitration agreements can be precluded from participating in class action lawsuits and must therefore litigate their cases on individual bases. The 5 to 4 vote upheld the use of arbitration agreements in the workplace. The court majority stated that the ruling was a logical reading of the law and reflected Congress’ preference for using arbitration to avoid costly and time-consuming litigation. The Court had earlier ruled that companies doing business with consumers may require arbitration and forbid class actions in their contracts. Arbitration clauses with class action waivers are now commonplace in contracts for things like cellphones, credit cards, and rental cars. The issue in Epic Systems Corp v. Lewis was whether these same principles apply to employment contracts.

    The decision applies to three separate cases relating to three employers: Epic Systems, Ernst and Young, and Murphy Oil. In all three cases, plaintiffs filed in federal court stating that their employers violated the Fair Labor Standards Act by not paying them overtime. However, in each case employees all signed arbitration agreements stating that they would arbitrate any disputes before a single arbitrator whose decision would be final and binding. Claims relating to different employees had to be heard in separate hearings.

    Writing for the majority, Justice Gorsuch stated that in the Federal Arbitration Act (FAA) Congress has instructed the federal courts to enforce arbitration agreements according to their terms – including terms providing for individual proceedings. Plaintiffs had asserted that the National Labor Relations Act (NLRA) makes illegal any contract that denies employees the right to engage in “concerted activities” for the purpose of “mutual aid and protection” and therefore some form of collective action cannot be prohibited. The Court asserted that since the NLRA does not expressly approve or disapprove of arbitration, the FAA prevails. Some legal scholars predict the impact of the Court’s ruling will be to largely eliminate the threat of employee class actions in cases such as a failure to pay overtime or systemic discrimination.

    Hiring of Federal Administrative Law Judges

    In Lucia v. Securities and Exchange Commission, the Court ruled in a case involving federal Administrative Law Judges (ALJs) at the agency. ALJs conduct trial-like hearings within federal agencies related to disputes over decisions such as claims for benefits and enforcement actions against individuals or businesses. This case was brought by a former financial advisor, Raymond Lucia, who promoted a retirement strategy he called “Buckets of Money” through radio shows, books, and seminars. The strategy suggested that retirement investors should first sell safer investments, giving riskier investments time to grow. In 2012 the SEC charged Lucia with violating federal law and SEC rules, claiming he had mislead investors in presentations to potential clients. Lucia and his company were fined $300,000 and he was barred from working as an investment advisor. Lucia challenged the case and argued that the ALJ who heard his case was improperly appointed. 

    Central to the case is the Appointments Clause in Article II, Section 2 of the Constitution which states in part “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint…Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointments of such inferior Officers as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” At issue is whether SEC ALJ’s are “officers” and in particular “inferior officers” who may be appointed by heads of departments. SEC ALJ’s were selected by the Chief Judge and approved by the Commission’s personnel office as opposed to being appointed by the Commissioners.

    The Court of Appeals for the D.C. Circuit held that SEC ALJ’s are not “Officers of the United States” but are instead mere employees, officials with lesser responsibilities who are not subject to the Appointments Clause. However, the Department of Justice, who had long contended that the judges were employees and not officers, switched positions and urged the Court to grant review in the case even though it had won in the appeals court.

    In a 7 to 2 decision the Supreme Court ruled that SEC ALJ’s are officers rather than mere employees since the judges exercise significant authority in hearing and ruling on disputes. It did not matter to the Court that the judges’ decisions were subject to review by the Commission.  Since the ALJ’s were appointed by staff members rather than by the Commissioners, their selection violate the Constitution’s Appointment Clause which requires “inferior officers” to be appointed by the president, the courts, or heads of departments. The Commission itself is a “head of department”, while its staff members are not. Since the SEC ALJs were not properly appointed, Mr. Lucia was entitled to a new hearing. This decision has a significant impact on how ALJs are selected and appointed.  

    Union Dues

    In Janus v. AFSCME Council 31, Mark Janus (a child-support specialist at the Illinois Department of Health and Family Services) sued the American Federation of State, County, and Municipal Employees (AFSCME) union. Janis contended that he did not agree with AFSCME’s positions and should not be forced to pay fees to support its work. Under Illinois law, state employees represented in a bargaining unit are not compelled to be members of the union or pay union dues. However they must pay an “agency fee”, an amount equal to that portion of union member dues spent directly on bargaining and administration of the bargaining agreement.

    The Court ruled in a 5 to 4 decision that public sector employees who are non-members of a union cannot be legally required to pay an agency or “fair share” fees as a condition of employment. This decision overturned a 40-year-old precedent established in the Abood v. Detroit Board of Education decision that said that states could allow public-employee unions to collect fees from non-members to cover the costs of workplace negotiations over salaries and benefits but not the union’s political activities.

    Racial Balancing and Affirmative Action in Academic Admissions

    In Students for Fair Admissions Inc. (SFFA) v. Harvard, SFFA (which includes more than a dozen Asian-American students who applied to Harvard and were rejected) has accused Harvard of intentionally discriminating against Asian-American applicants by limiting their admission numbers each year. The suit, initially filed in Federal District Court in 2014, accuses Harvard of “racial balancing” – keeping roughly the same distribution of racial groups year after year despite changes in application rates and qualifications. Harvard denies that it conducts racial balancing or discriminates against Asian-Americans. They claim they use a “whole person evaluation” and that race is one of many factors considered in the pursuit of diversity.

    Multiple times the U.S. Supreme Court has affirmed that universities may take race into account as one factor among many to achieve a diverse class. But there are limits on what colleges may do. The Court prohibits racial quotas and encourages colleges to consider whether they can achieve their goals through race-neutral alternatives such as using financial aid and other recruiting tools to ensure socioeconomic and geographical balances.

    SFFA is viewed by many as an anti-affirmative–action group and the lawsuit part of an ongoing effort to do away with race-conscious affirmative action. In August 2018, the Department of Justice filed a legal brief in the case lending its support to the plaintiffs. Alternatively, a large number of Harvard supporters have filed briefs in the case, claiming that a failure to consider race would effectively threaten diversity at all American colleges.

    The case went to trial in October, and it may have far-reaching implications for the nation’s colleges and universities that consider race in their admission processes. The case may end up at the Supreme Court, which is likely to be more conservative than in 2016, when it upheld narrowly tailored race-conscious admissions in Fisher v. University of Texas at Austin in a 4-3 decision.

    Sexual Orientation as a Protected Class Under Title VII

    A case that the Society for Human Resource Management (SHRM) cited as one of the top 10 employment cases of 2017 has finally come to an end. Kimberly Hively, the professor in the Seventh Circuit’s landmark ruling that protection under the Civil Rights Act extends to sexual orientation has settled with her former employer, Ivey Tech Community College. The parties filed a joint mediation summary on August 1, 2018 announcing the settlement. The terms of the agreement were not released.

    Kimberly Hively was an openly lesbian, part-time adjunct professor at Ivy Tech Community College. In 2014 she claimed that she had been repeatedly denied full-time employment and promotions because of her sexual orientation in violation of Title VII of the Civil Rights Act of 1964. The District Court dismissed her case, ruling that Title VII does not recognize sexual orientation as a protected class. The case then went to the 7th Circuit Court of Appeals where a three judge panel affirmed the District Court’s ruling. Hively filed for a rehearing and the majority of the 7th Circuit found that the Civil Rights Act protection does prohibit discrimination based on sexual orientation and became the first U.S. Court of Appeals to rule that sexual orientation discrimination was prohibited under Title VII.

    EEOC Updates

    The EEOC’s recent actions relate to many arenas within HR that are important to IO psychologists.

    Sexual Harassment.On October 4th, 2018, the EEOC released a statement highlighting its preliminary FY 2018 sexual harassment data. In the release, Acting Chair Vicki Lipnic praised her staff for responding to the increased demand resulting from the #MeToo Movement.  According to the statement, “The EEOC filed 66 harassment lawsuits, including 41 that included allegations of sexual harassment. That reflects more than a 50 percent increase in suits challenging sexual harassment over fiscal year 2017.”

    Criminal Background Checks.  In September, the EEOC reached an agreement with Rooms To Go, which resolved race discrimination allegations brought by an African American applicant whose employment offer was rescinded because of the employer’s background check policies. Rooms To Go has now removed blanket exclusions and those with convictions can proceed via an individualized assessment process. This agreement is a reminder to employers that they should consider the EEOC’s 2012 Enforcement Guidance relating to criminal background checks.

    Disability Discrimination. Disability discrimination continues to be of the utmost importance to the EEOC, a fact that has resulted in many recent lawsuits. For instance, according to the Agency, Wal-Mart interviewed an applicant with a physical disability but refused to hire her because the employer assumed she could not perform the job duties. Another large employer, Target, failed to interview a qualified candidate because the individual was deaf. Similarly, Safeway Grocery Stores was recently sued for failing to hire a deaf applicant. Aside from these hiring lawsuits, disability discrimination extended to other areas of the employee life cycle according to the EEOC. As an example, the Agency sued Crossmark for failing to accommodate a class of individuals who needed to use a stool during their typical duties as employees who offer samples to customers at stores such as Wal-Mart and Sam’s Club.

    Compensation. The Agency continued its fight to ensure equal gender pay, even though compensation lawsuits were not as common as other types of suits (e.g. those relating to hiring). To illustrate, alleging a violation of the Equal Pay Act, the EEOC sued First Metropolitan Financial services for paying female branch managers less than male counterparts. Interim Healthcare of Wyoming and Fastenal Company also faced pay-related suits.

    Other Administrative Law Updates

    Under the Trump Administration, the Office of Federal Contracts Compliance Programs (OFCCP) has released various new directives, which impact the HR programs of federal contractors. Of note, Directive 2018-08 describes the Agency’s efforts to promote transparency in its work. The Directive highlights many areas, such as the Agency’s scheduling methods and the timelines for finishing audits. Another directive (Directive 2018-09) describes the Agency’s new Ombud Service, which seeks to improve relationships between OFCCP and federal contractors. Last, the Agency released Directive 2018-05, which describes OFCCP’s approach for evaluating contractors’ compensation systems during audits.

  • 10/23/2018 1:59 PM | Anonymous

    Authors: Lance Seberhagen and Nikki Blacksmith

    PTCMW was established in March 1977.  Only one person has been a continuous member of PTCMW since Day One.  That member is Dr. Lance Seberhagen, Director of Seberhagen & Associates, Vienna, VA.  He is a Founding Member of PTCMW and has held various positions in PTCMW over the years, including Recorder (1977), President (1989-90), and Calendar Chair (1982-2017).  In 2014, he received the PTCMW Service Award for his service to PTCMW.

    PTCMW celebrated its 40th anniversary in 2017.  As part of that celebration, Dr. Nikki Blacksmith, PTCMW’s past Newsletter Editor, interviewed Dr. Seberhagen to recall some highlights from PTCMW’s first 40 years.  

    1.       To begin, tell us a little about yourself and your background.

    I was born in New York City and grew up in Scarsdale, NY (about 20 miles north of NYC).  My dad worked for an advertising agency on Madison Avenue, just like Mad Men on TV.  In 1958, we moved to Minnesota when my dad joined an advertising agency in Minneapolis, and I attended high school there.  My dad’s work got me interested in consumer psychology, but he warned me not to go into advertising because it was too cutthroat (like Mad Men).  Eventually, I found my way to industrial and organizational (I-O) psychology.

    I earned degrees at Brown University (BA, psych), Southern Methodist University (MA, I-O psych), and University of Minnesota (PhD, I-O psych).  While at SMU, I worked as a Personnel Analyst for the Dallas Civil Service Department – in the same building where Ruby shot Oswald.  While at the University of Minnesota, I worked as the Test R&D manager for the Minnesota State Personnel Department.  I hired several other Minnesota graduate students to work in my unit, including Norm Peterson (later a PTCMW President), Ron Page, Gail Drauden, and Jean Barsaloux, all of whom became PhDs in I-O, plus Bob Etzioni (MS in I-O, George Washington University).

    As part of my duties for the State of Minnesota, I got a grant from the U.S. Civil Service Commission (USCSC) to write a book on Legal Aspects of Personnel Selection in the Public Service, which IPMA published in 1973.  As part of my work on the book, I made several trips to Washington, DC to meet with Steve Bemis, Chief Psychologist at OFCC (later OFCCP); Jim Sharf, Chief Psychologist at EEOC; and various I-Os at USCSC (now OPM).  I liked DC so much that I moved there in October 1973 to work as an I-O consultant for Planning Research Corporation in McLean, VA.  From December 1976 to present, I have had my own I-O consulting and expert witness practice as Seberhagen & Associates in Vienna, VA.

    2. As a Founding Member, can you tell us about the impetus for starting PTCMW?

    When I moved to DC in 1973, I knew Steve Bemis, Jim Sharf, and a few other I-Os, but I suspected that there were many more I-Os in the DC area.  The problem was how to meet them.  I gradually met more local I-Os through my consulting work and attending professional conferences (e.g., APA, IPMAAC, and BNA).  This helped, but there was still much room for improvement.

    Steve Bemis came to the rescue in March 1977, when he called me and a few other DC I-Os to explore the possibility of starting a local I-O professional association for DC, MD, and VA.  This small group of I-Os became the Founding Members of PTC/MW.  (PTC/MW later changed its name to PTCMW, as described below.)

    Steve was the perfect person to lead the creation of PTC/MW.  He was a friendly and helpful I-O who already knew most of the I-Os in DC (and across USA) from his work for the federal government (Labor/OFCCP) and various DC consulting firms.  He was also committed to the development of employee selection procedures that identified the best candidates, while maintaining equal employment opportunity.  Steve felt this goal could be achieved if there were greater sharing of ideas among I-Os, lawyers, and other interested parties.

    To continue reading, download the entire article HERE

  • 10/22/2018 10:00 PM | Anonymous

    Author: Josh Isaacson, PTCMW President

    PTCMW is constantly evolving with the times and our memberships needs. This new format aims to maintain the quality of content that the newsletter has provided since its inception while allowing for a more interactive online forum for discussions and ease of access. Our plan is to publish blog posts throughout the year on the PTCMW website, which will allow authors and members to engage in discussions on current topics of interest.  We really hope you enjoy this new look!

    Please join me in an overdue acknowledgement and THANK YOU to the 2017 PTCMW board and committee members for a job well-done. In 2017, PTCMW had an all-star line-up of speakers, provided several networking opportunities for members, produced a newsletter filled with insightful columns, and engaged I-O psychology graduate students through our consulting challenge. 2017 also marked PTCMW’s 40th anniversary and we ended it with a bang throwing the largest happy hour event in PTCMW’s history.  Finally, PTCMW’s annual Fall Event welcomed 200 attendees, 22 sponsoring and participating organizations, and speakers Nancy Tippins and Elizabeth Kolmstetter highlighted the event discussing successes and challenges in personnel selection across the public and private sectors. Thank you to everyone who made these events possible and to the members for keeping PTCMW strong!

    Your current PTCMW board and committee members have been very hard at work continuing to provide high-value resources and networking opportunities to members over the past 10 months. We’ve hosted 12 well attended events including six presentations, two panel discussions, one workshop, our annual graduate student consulting challenge, and two networking happy hours. Topics have been diverse including a discussion on reducing mean group differences on cognitive ability tests, coaching and I/O Psychology, astronaut selection, data visualization, machine learning approach to job analysis, and generational differences in workplace attitudes and job satisfaction. Our membership is also looking strong with 325 active members and over 40 new members in 2018.

    The Annual Fall Event: November, 5th!

    Panelists Liberty Munson, Dave Dorsey, and Seymour Adler will present on “Cutting Edge Technology: Transforming the World of Work and I/O Psychology as We Know It”. We also have  a record 23 sponsoring organizations this year and there will be plenty of fun *New* prizes to give away during the networking and talent connection portion of the event!

    Please secure your spot and register now as space is limited!  Click here for more information.

    Newsletter Blog Naming Competition!!!

    Please send us ONE creative name for PTCMW’s Newsletter Blog by November 9th.  Following the Fall Event we will send out a poll to have members vote on a winner.  The winner will get FREE admission to one of our monthly events in 2019. Send your name to our new Newsletter/Blog Editor, Cliff Haimann, here.

    We Need Authors and Volunteers

    • We are looking for people interested in writing articles and facilitating discussions on our new blog! If interested, please send an email to our Newsletter/Blog Editor here.
    • Although we have several great volunteers lending their service to PTCMW we are always looking for more help and fresh perspectives. If you are interested in helping out, even for just an hour a month, please get in touch!

    We want your feedback 

    If you have any suggestions for making PTCMW and this newsletter better please email the President directly here – or feel free to leave a comment below!

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