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Welcome to the The Point, PTCMW's Blog.

The blog is intended to be a space where we can share our latest research and applied approaches to highlight the passionate individuals and teams in our field.

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

  • 05/28/2019 10:55 AM | Anonymous

    Author: Emilee Tison

    Come join us for our upcoming speaker series! Here is what we have on the books for the next few months:

    May 29, 2019 – Panel Presentation:

    Taking the Path Less Traveled: Non-Traditional I-O Roles

    Richard Cober (MicroStrategy), Julisara Mathew (U.S. Department of State), and Allison Yost (BetterUp) will provide insights and experiences from their I-O careers – highlighting how the I-O skill set can be leveraged across a variety of settings, even in seemingly non-traditional roles.

    Shonna Waters(BetterUp) will moderate this session.


    June 18, 2019 - Workshop:

    The diversity characteristic that affects us all ….eventually: A Primer on contemporary EEO issues related to age

    Eric M. Dunleavy (DCI Consulting Group), Martha E. Hennen (U.S. Security and Exchange Commission), and Don Lustenberger (DCI Consulting Group) will review recent case law and EEO agency activity, and focus on key issues in evaluating, both legally and analytically, age-related EEO and civil rights issue.


    July 24, 2019 - Presentation:

    The state of I-O Psychology research: Where have we been, and where are we going?

    Gilad Chen (University of Maryland) will summarize key milestones and trends in the I-O psychology research (based on the recent JAP Centennial Issue), discussing emerging trends and the important interplay between academic/scientific and practice/applied issues in the field.


  • 05/23/2019 1:06 PM | Anonymous

    Author: Lorin Mueller

    The 2019 SIOP Conference at National Harbor represented a good opportunity for PTCMW to broaden our reach. PTCMW worked with SIOP to make the most of these opportunities. Below are some of the highlights of PTCMW’s activities at the conference. 

    • In exchange for helping promote the conference locally, SIOP gave PTCMW a discount on sponsoring the Newcomer Reception. PTCMW leadership and volunteers attended the reception, passed out some leftover giveaways from previous Fall Events, and introduced ourselves to new prospective members. The PTCMW Board thought the Newcomer Reception was a good opportunity to identify new SIOP members who are local to the DC area, or soon would be. We also promoted the PTCMW webcasts to people who were not local to the DC area.
    • As part of the sponsorship, PTCMW got a full page ad in the program. We offered a discount to new members in the month of April. A few people have made use of this discount and presuming that they attend a few PTCMW events and maintain their membership for more than a year, the expenditure should be cost-effective, other benefits of sponsorship notwithstanding.   
    • PTCMW leadership participated in a couple of executive sessions focused on local I/O groups. We made some good connections and shared some ideas on the topics of maintaining a leadership pipeline, getting routine maintenance activities done, identifying event speakers, and generating revenue.
    • As an exclamation point on the conference, PTCMW and IPAC jointly sponsored a hospitality suite for our members and a few guests. To describe it as “wildly successful” would be an understatement. Although we had some hiccups getting the room set up, the event was highly attended, and guests reported having a great time. Several people noted that it was the highlight of their conference. It was great seeing our members relax and connect after a long day of conference activities.

    Many thanks to everyone who volunteered to help out with the conference! We expect to see the benefits of our efforts pay off in the years to come.

  • 04/14/2019 7:38 PM | Anonymous

    Author: James Wilcox

    Please see the attached document for an update on PTCMW's budget: 2019 Budget Overview.docx

  • 02/17/2019 1:58 PM | Anonymous

    Author: Daniel Shore

    In the Spring of 2018, I won a competition (and cash prize!) being hosted by George Mason University called the 3-Minute Thesis (3MT). The idea behind the competition, which was first held at the University of Queensland and is now annually held at over 200 universities around the world, is to push PhD students (who have successfully proposed their dissertation) to distill their entire dissertation into a succinct 3-minute pitch. The pitch must clearly and engagingly explain their work to a lay audience. The goal of the competition is to enhance presentation and communications skills for doctoral students.

    As a doctoral student in an applied field such as I/O Psychology, I view it as imperative that I can communicate with those outside of the academic world about I/O research. In particular, my line of research in graduate school has focused on the “unintended consequences of employee recognition” (that’s the opening to my elevator pitch). Thinking in lay terms, my 3MT pitch based on my dissertation was framed as, “how do those working hard react when those hardly working are rewarded?”

    Guided by the 3MT guidelines, my pitch had three sections. Below, I share some excerpts from the script I wrote for my presentation.

    Section #1: Connect to the audience with a relatable analogy for the research concept.

    “IMAGINE. You’re assigned a partner on a class project. And YOU end up doing all of the work. You submit the project with both names on it. You get an A for all the hard work you did. They get an A for all the hard work…you did. Project #2. Same partner. This time, you start by assigning tasks. And immediately, your partner starts… asking you for help on their tasks. A lot. So then you have to decide how and how much do you help. And are you willing to keep working with them on Project 3? Or 4? Or what about a 6 month project when they’re your co-worker?”

    Section #2: Explain the study design.

    “I examine two personality traits. One trait is how strongly you feel that that your rewards should be proportionate to the work that you put in. A second trait is how sensitive you are to fairness in team settings. I measure these with a survey at the beginning and then the fun begins. It’s a Lego building activity where a participant works with an undercover research assistant of mine. On Task 1, my assistant barely helps. After completion, rewards are given, and my assistant, gets a larger reward. Overclaiming when underperforming. In Task 2, they work separately, and my assistant asks for help. A lot of help.”

    Section #3: Bring it back home with the WHY for why the research matters at all.

    “In some industries such as tech, where a majority of employees are already Millenials, recent surveys have shown that over 1/3 of employees who are quitting their jobs are quitting because of…unfair treatment. So, we need to make sure that employees perceive their treatment as being fair which means becoming more aware about what practices induce these feelings and understanding how and why employees perceive fairness differently…If we want them to stop quitting their jobs.“

    The full video of my 3MT pitch, if you have time for a 180-second break, can be seen here: https://vimeo.com/266941313#t=1441s

    Feel free to reach out (dshore@gmu.edu) if you want to talk more about distilling your research and/or if you are interested in entering your university’s 3MT competition!

  • 02/13/2019 9:02 PM | Anonymous

    Author: Lorin Mueller

    Hello PTCMW Members!

    I am reaching out to welcome new board members and key volunteers, share some great news about PTCMW’s recent agreement with SIOP to sponsor and help promote the 2019 SIOP Annual Meeting, announce new board members and committee chairs, review 2018 highlights, and share some goals for 2019!

    Welcome New Board Members

    I am pleased to welcome newly elected 2019 PTCMW Officers: Recorder Semret Yibass, Secretary Angela Lee, Treasurer James Wilcox, Vice-President for Programs Emilee Tison, and President-Elect Shonna Waters. Joining this fantastic group are committee chairs and key volunteers: Andrew Naber (continuing Membership Committee Chair), Lauren Lanzo (Special Events chair), Kira Foley (Calendars chair), Cliff Haimann (continuing Blog Editor), Winnie Kirkos (incoming Webcast Producer) and Jenna Eagleson (incoming Webmaster). I want to thank these professionals for their support over the incoming year. PTCMW is lucky to have them!

    We’re always looking for committee members and volunteers, so if you’re interested in helping out with a committee, event or project, please let one of us know!

    Exciting Partnership with SIOP!

    For several years, PTCMW and SIOP leaders have been working hard to identify ways that we can better work together to serve our members and promote our profession. We are pleased to announce that PTCMW and SIOP have reached an agreement to partner for the 2019 SIOP Annual Meeting in National Harbor, MD.

    PTCMW will receive a full page ad in the conference program and sponsorship of the Newcomer Reception on Wednesday, April 3, from 5:00-6:00 PM. PTCMW leadership felt that the Newcomer Reception gave us the best opportunity to promote our organization to people who are new to I/O psychology, and in the DC region now or in the near future. If you are interested in attending the Newcomer Reception as a PTCMW representative, let us know!

    In return, PTCMW is helping to promote the conference to our members.

    Preconference Workshops: You might have already seen PTCMW Rob Michel’s article on the preconference workshops on The Point blog (http://ptcmw.org/blog/7142705). If not, it’s worth a read. Several PTCMW members are involved in the workshops as committee members or presenters. Having been a workshop committee member, presenter, and attendee, I can tell you they are well worth your time and money!

    Special Preconference Event: SIOP is hosting an event for HR leaders at the National Press Room on Tuesday, April 2 at 5:30 PM called “Top Minds Bottom Lines”.  This event will discuss how HR professionals from some of the most innovative and reputable companies in the world are using HR data to generate meaningful insights, drive action, and improve business.

    An expert panel will share actual examples of the various ways their organizations (Google, Capital One, & Twitter) have applied data-based decision making and organizational science to business-relevant talent issues throughout the employee lifecycle. Tickets are $20 and include a catered networking reception and cash bar before and after the formal presentation.

    Please share this event with HR leaders in your organization or broader professional network! 

    Sponsorship Opportunities: The SIOP conference is just seven weeks away! Let the attendees know your company is there.  Support SIOP as a sponsor or exhibitor and get your company’s name in front of 5,000 IO Psychologists and HR professionals.  Contact Susan Rogers, SIOP Manager, Business Development, at srogers@siop.org ASAP for details or visit http://my.siop.org/Conferences/2019-Conference/2019-Partners.

    You can get an idea of what SIOP events and promotion opportunities are still available here: http://ptcmw.org/announcements/7149172.

    2018 In Review

    I want to thank Past-President Josh Isaacson and the members of the 2018 PTCMW Board for doing such a great job providing us with educational and networking opportunities. We’re lucky to have a deep bench of committed professionals to run an organization like this.

    Last year was highlighted by another outstanding Fall Event, which was attended by over 200 professionals and 30 sponsors with PDRI as the Platinum Sponsor. In addition to the Fall Event, our 9 educational events were well attended and informative. We were pleased to honor Ilene Gast as the winner of the PTCMW Service Award (http://www.ptcmw.org/blog/7131640), and the team consisting of Sabina Diyarova, Cierra Everette, Alexander Fernandes and Jerod White took top honors at the 2018 Consulting Challenge, sponsored by Aon.

    Looking Forward to 2019

    The current PTCMW board is lining up a great series of events for 2019, including a strong slate of educational sessions, and some new ideas for networking events. We’re actively seeking sponsors for our events. If you or someone in your organization is interested in promoting their organization through sponsoring a PTCMW event, please reach out to us. We hope to be able to use sponsorship money to bring in some interesting speakers from outside of the DC region. 

    We’re also gearing up for a member survey to learn how we can better serve our members in the future. Your feedback is important – we really do listen!  We’re hoping to use the information from the member survey to undertake a strategic planning process in the latter half of the year. If you have thoughts or suggestions on how PTCMW can continue to provide an excellent level of service to our members, please don’t hesitate to let us know. 

    And if you have some colleagues who aren’t involved in PTCMW, send them our way. Our educational sessions and networking events are fantastic places to meet new people and share ideas. 




  • 02/02/2019 12:33 PM | Anonymous

    Author: Rob Michel

    The Annual SIOP Conference is taking place right in our backyard this year (for most PTCMW members, anyway), which presents a unique opportunity to take advantage of SIOP’s preconference workshops. The workshops occur on Wednesday, April 3, the day before the conference begins, and provide an intimate setting to learn from some of SIOP’s leading experts. Each workshop is 3.5 hours, with both a morning and an afternoon session, allowing participants to attend two different workshops. If you cannot afford a full day out of the office, there is also a half-day option that allows you to attend a single workshop in either the morning or the afternoon. This year’s list of workshops includes several topics of particular interest to PTCMW members, including new approaches to pre-hire assessment, validation 201, structured interviews, contemporary EEO developments, and many others. The full list, including detailed descriptions of each workshop and presenter bios, can be accessed on SIOP’s website by clicking here.

    In addition to learning from some of SIOP’s leading authorities on cutting-edge topics, the workshops offer an opportunity to interact with colleagues who share similar interests and are facing many of the same challenges. And the networking extends beyond the workshops themselves, with a sit-down lunch in between the morning and afternoon sessions (full-day participants only) and an evening workshop reception, considered one of SIOP’s premiere social events.

    Registration for the workshops is done via the online conference registration process. If you have already registered for the conference, it is easy to go back in and modify your registration by adding the workshops. Don’t miss out on this unique opportunity!

  • 01/27/2019 10:25 AM | Anonymous

    Author: Lorin Mueller

    The Personnel Testing Council Metro Washington (PTCMW) is pleased to honor Dr. Ilene Gast as the winner of the 2018 PTCMW Service Award. The award is given to members who have volunteered significant time to further the goals of PTCMW, and the winner is selected by a vote among the past presidents of PTCMW.

    Dr. Gast has a long history of serving as a PTCMW board member, presenter, and perhaps most notably served as the organization’s President in 1987. She was nominated by Martha Hennen and Kathlea Vaughn. From her letter of nomination:

    Ilene Gast is a true reflection of the scientistpractitioner. She has demonstrated her commitment to the I/O profession through her education, career pursuits, and her active professional membership in PTCMW, SIOP, APA, and IPAC. Ilene currently serves as an Emeritus Personnel Research Psychologist providing expert consultation on employee selection and survey design projects with Millefiori Associates. Ilene retired from her long tenure as a Senior Personnel Research Psychologist at U.S. Customs and Border Protection, where she spent the bulk of her long and fruitful career. Ilene’s work at the U.S. CBP pioneered efforts to embrace authentic assessment, including inbasket and computerized assessment, in the federal government. Dr. Gast was part of the CBP team supporting the design of logic based measurement (LBM) for purposes of employee selection and promotion. She spent the bulk of her time with CBP working on promotional exams for supervisors, managers, and executives. Ilene earned her doctoral degree from George Washington University and an undergraduate degree in Psychology from American University.

    In her acceptance, Dr. Gast noted “how thrilled I am to be honored by PTC — being especially grateful to those who nominated me, and to my esteemed colleagues who made it possible for me to be selected. I’ll also touch on how important PTC was to my own development—participating on committees and taking various roles on the board was some of the best leadership training that I received during my career.   PTC also provides a means for members to remain current, to exchange information and ideas with others, and to receive mentoring and mentor others.”

    Past recipients of the Service Award include Lance Saberhagen, Ted Hayes, Ted Rosen, and Dan Putka. The following is a link to PTCMW’s awards page: http://www.ptcmw.org/Awards

  • 12/10/2018 8:54 AM | Anonymous

    Author: Seth Kaplan

    I am an associate professor of IO psychology at George Mason. I have a few different streams of research. Here are brief descriptions of my research in these areas.

    Improving Employee Wellness

    My main program of research focuses on improving wellness at work. Colleagues (including many graduate students) and I have completed various projects trying to enhance wellness. One strategy involves developing and evaluating workplace positive psychology exercises. In this research, we use experimental designs to evaluate the effectiveness of simple activities that can facilitate the everyday thoughts and behaviors that ultimately lead to greater well-being. These activities include: maintaining a workplace gratitude log, changing social interaction patterns (e.g., fostering new workplace social ties, reducing workplace interruptions), and “job crafting” by making small tweaks to one’s job and how to perform it. In a series of studies, we have found that these activities can lead to better work-related mood. Interestingly, though, the activities do not seem to translate into higher ratings of job satisfaction. We suspect this is because the activities impact the everyday experience of working, but job satisfaction measures more so capture overall evaluations of the job.

    A second strategy we have begun to purse entails highlighting inaccuracies in predictions about reactions to different work events. Thus, for example, we may overestimate the disappointment we will feel from failing in a challenging work task but undervalue the experience of having tried the task at all. Following from these ideas, we are developing ways to make people aware of these discrepancies and, in turn, to change their corresponding thoughts and behaviors.

    Improving the Implementation of Telework Programs

    Another area in which I do research – and a potential way to improve well-being - is by improving the implementation of telework initiatives. Although the majority of large U.S. organizations offer formal telework programs and most jobs are amenable to at least some amount of teleworking, most employees telework very little, if at all(1). Thus, a paradox seems to exist wherein organizations offer telework programs but employees cannot utilize them. If nothing else, this situation has the potential to create unrealistic and unmet expectations. Using various methodologies, colleagues and I have found that direct supervisors are the “bottleneck” who do not assent to their direct reports’ requests to telework. Moreover, we found that supervisors’ views about particular employee’s conscientiousness drive these decisions. Other factors (e.g., the availability of technology allowing for enhanced virtual contact) matter much less than do these interpersonal attributions.

    In other studies, students and I have examined whether telework actually does translate into the presumed gains in well-being and performance. Using a within-person design, we showed that employees exhibit higher objective performance on days they are teleworking than when working in the office. We also have demonstrated that whether or not people experience better moods while teleworking depends on their personality. Thus, teleworking appears not to be universally beneficial for well-being.

    Enhancing Teamwork in High Reliability or Extreme Contexts

    My other main research stream focuses on enhancing team effectiveness in high reliability and extreme contexts. Through this work, my colleagues and I seek to understand fundamental team phenomena and to make practical improvements for these specific teams/contexts. Colleagues and I have studied various different kinds of teams/settings, including nuclear power plant control room crews, trauma teams, cockpit crews, mine rescue crews, and surgery teams. Most of our work has centered on team communication, in particular. Repeatedly, this work has demonstrated that the pattern of communication, not the amount of communication, relates to team outcomes/ effectiveness. For instance, we have shown that, during non-routine events, teams are more effective if they hold frequent, brief, unplanned meetings versus, longer planning meetings at regular intervals.

    Also, colleagues and I recently have explored strategies for enhancing surgical team effectiveness by considering the composition of the team. A few studies in the surgical domain have shown that teams composed of more familiar members (those who have worked together more frequently in the past) tend to be more effective than less familiar teams. We extended this work by examining for which particular pair of team members familiarity is most important (e.g., familiarity between the surgeon and the scrub versus familiarity between the surgeon and the anesthesiologist). Our findings showed that the pair that is most important in terms of surgery length and patient length of hospital stay differed across procedures and healthcare systems. Thus, recommendations to hospital administrators need to be nuanced – apparently depending on contextual factors.

    My graduate students and I always are looking for collaborations and for ways to use this research to enhance individual and organizational effectiveness. . . so please feel free to reach out to me at skaplan1@gmu.edu.

    Thanks for reading!

    (1) WorldatWork. (2015). Survey on workplace flexibility. Retrieved from WorldatWork website

    Sample Articles on these Topics

    Kaplan, S. Bradley-Geist, J., Ahmad, A., Anderson, A., Hargrove, A., & Lindsay, A.

    (2014). A test of two positive psychology interventions to increase employee well-being. Journal of Business and Psychology, 29, 367-380.

    Kaplan, S., Engelsted, J., Lei, X. & Lockwood, K. (2018). Unpackaging manager

    mistrust in allowing telework: Comparing and integrating theoretical perspectives. Journal of Business and Psychology, 33, 365-382.

    Stachowski, A. 1, Kaplan, S.A.1, & Waller, M.J. (2009). The benefits of flexible team

    interaction during crises. Journal of Applied Psychology, 94, 1536-1543.

    These and other articles can be found here: https://www.researchgate.net/profile/Seth_Kaplan

  • 11/26/2018 4:09 PM | Anonymous

    Author: Erica Young, University of Maryland - Baltimore County

    As a working professional, you know it can be difficult to dedicate non-working (and working) time to your personal and professional growth. Commitments, limited time, or money hold us back from taking the opportunity to focus on our growth and the growth of I-O psychology.

    However, opportunities do exist. One of the most prestigious and well-known of those opportunities is the Center for Advanced Study in Behavioral Sciences (CASBS).

    Since 1954, CASBS has been hosting a cohort of 40 fellows per year at the center, where they have no departmental or teaching commitments. Instead, they are given a study, each other, and the creative space to further their professional goals.

    Most of the fellows came to the center at crucial moments in their career (after applying and being accepted) and used their time at the center to write books, complete research, and develop theories. Among past CASBS fellows, 26 won Nobel Prizes, 24 won Pulitzer Prizes, and 51 won MacArthur “Genius” Awards. The Tyler Collection library holds all of the texts written at CASBS by the fellows, including (but certainly not limited to), Who Governs, by Ronald Dahl, The Structure of Scientific Revolutions by Thomas Kuhn and Freakonomics by Steven D. Levitt and Stephen J. Dubner.

    In addition to the center’s prestige and many accolades, the major draw for scholars is the collaborative environment.  The CASBS website states that the environment allows fellows to gain “exposure to new methods, perspectives, theories, and problems.” Once per week, one of the fellows delivers a presentation on their area of interest to their peers. In addition, scholars from across the world often visit and meet with the current fellows.

    You might be wondering if any I-O psychologists have been part of CASBS. Many well-known social psychologists and organizational behavior scholars (e.g., Richard Hackman, Ed Lawler) have been CASBS fellows. For the first time, they hosted an I-O psychologist in 2016-17. That psychologist is Tara Behrend, P.h.D., Associate Professor of Industrial-Organizational Psychology at the George Washington University. Tara’s interest and research focuses on how people’s experiences at work have been impacted by technology. She is also interested in how I-O psychologists can build more fair and equitable workplaces and socioeconomic systems. Tara is the director of the Workplaces and Virtual Environments (WAVE) lab at GW.

    To apply for a CASBS fellowship, she proposed a project she would work on during her time there. However, like most CASBS fellows, the experience of being exposed to new perspectives changed the nature of the project. Tara is writing a book on privacy and surveillance; she also used her time at CASBS to develop a second book about Workforce Effectiveness that will be part of the SIOP Frontiers series. Tara said her time at CASBS, contributing to a book and collaborating with the other fellows allowed her to “seek refuge from the world and to think and collaborate in a very enriching environment”. Tara was able to choose the office she conducted her work in and she said she chose her office based off the influential social psychologists who had used the office previously. Because Tara is inspired by the work of Albert Bandura and Harold Kelley (among others), she chose to start her book in the space they once occupied while at CASBS.

    Overall, Tara had a fulfilling, inspiring and uplifting time as a fellow at CASBS. Tara said she enjoyed being an advocate for I-O, in a space that I-O has not traditionally participated in. Tara compared her experience to returning to college, where she was encouraged to interact with different people of different disciplines and from it “gained a deep appreciation for other social scientists” in addition to deepening her appreciation for I-O. After finishing her fellowship at CASBS, she returned to Washington, DC to continue her research and teaching, and continues to work on her books. Keep an eye out for her literature and work. It will be inspiring to see the next I-O psychologist attend CASBS and work in the “Behrend” study.
  • 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.

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