This is not a simple issue, because age should not guarantee employment for the shiftless. As contributing editor Jonathan Feldman pointed out recently, "[T]here's a big difference between getting rid of people because they're old and shedding people who aren't cutting it. To put a finer point on the matter: Thoughtful cost control doesn't equate to age discrimination."
However, as Feldman also observes, it's difficult to prove age discrimination.
It's difficult to prove because companies are not transparent in the way they hire or fire. They need to become more so.
Companies demand transparency from prospective employees, who must reveal all sorts of information. But they are not forthcoming themselves about hiring requirements or decisions. How do outsiders know if a company exhausted its options before turning to a foreign hire? They don't.
One of the effects of this lack of transparency is that employees have no way to gauge whether a job posting represents a legitimate need or is a sham with "purple squirrel" requirements. A purple squirrel is something not found in nature, so job postings seeking purple squirrels are preordained to go unfilled.
A source I spoke with, who asked not to be named for fear of repercussions, recounted being invited to a major technology company to interview for a program management job. The person accepted the interview reluctantly, because the job wasn't a great fit. But the company seemed even less interested. It didn't provide the interviewee with any information about preparing for the interview or about who would be attending. The interviewer showed up 20 minutes late and no one had the interviewee's resume. My source said it was clear the company wasn't serious about the interview.
Such positions, the source suggested, often list purple squirrel requirements -- such as five years of experience with a three-year-old technology -- as a reflection of the fact that the job posting is there to satisfy the statutory requirement in the green card process to consider U.S. workers before hiring a cheaper foreign worker.
Matloff noted this practice is common, but stressed that it's a misperception that the H-1B program includes a requirement to consider Americans before hiring someone from abroad. "If there's a green card process going on, which does require looking for an American first, then purple squirrel requirements are common," he said.
Matloff said that not all purple squirrel requirements are intended to provide legal cover. Some of them, he said, are simply a reflection of the fact that human resources departments need some way of filtering the deluge of resumes they receive. However, he added, in some instances, excessively specific requirements reflect the actual skills of foreign employees who have already been hired.
"Immigration lawyers as a group, they have explicitly admitted all this," Matloff said. "They say the employer has already found the foreign national they want to hire, so it's ridiculous to go through this charade to find an American."
Subtleties aside, companies engaging in such practices are violating the spirit if not the letter of the law. And they're doing so as a result of the very thing they chastise in workers: laziness. Many employers in the U.S. appear to have become disinclined to train workers, due to the ease of dipping into the foreign talent pool. Finding good people and training them takes work and costs money.
If businesses want their claims about talent shortages to be considered seriously, they need to support their claims with a more transparent hiring process. Matloff believes this is unworkable, because the suitability of an employee will always remain in the eye of the beholder.
Perhaps so, but there could be more eyes trained on the hiring process, without turning this into another regulatory burden. If hiring decisions faced a company-wide vote, for example, merit or lack of merit would be more obvious. And among technical job seekers, contests can provide a way to evaluate potential employees in a context divorced from willingness to accept a below-market salary.
Matloff has made the case that H-1B workers are no better or brighter than U.S. workers. Let corporate America prove that supposedly essential foreign workers really have no peer here.