Last week, we raised our hand about big data in HR and the need to validate results to prevent disparate impact discrimination. This week, we have another question about whether employers create expectations when they adopt emerging tech.
Increased employee engagement and data-driven decision-making are goals of nearly every HR Department, and rightfully so. Some technology resources make spectacular promises about these things, and if those promises are fulfilled, adoption of HR technology may well be worth the investment of time and resources. But as employers weigh costs and benefits, they should consider whether their use of HR technology creates the expectation that they will use those resources to fulfill their legal obligations, and not just when they want to achieve some selected business purpose.
Here’s a scenario: Encouraging employees to use social media increases employee engagement. Employees feel more inspired and more connected to their organization and their peers. Regardless of whether the social media platform is public-facing or only internal, its use has significant benefit as a tool for innovation and collaboration – just ask the Mayo Clinic. So what if an employer encourages its employees to post suggestions for workplace improvement to an internal social media site, but fails to monitor the employee comments? If a complaint about unlawful workplace activity appears on the site, is the employer on notice? Does the employer’s failure to investigate the complaint constitute failure to take timely and appropriate action? It’s a risk.
Enthusiasts tell us that big data can give great insight into whether an applicant is a good fit for an organization. Sentiment analysis and predictive analytics, for example, give employers a sense of how an applicant will perform, using things like word choice and complexity on social media or during interviews. So if an employer uses sentiment analysis for hiring, does that create an expectation that it can or should use big data to evaluate other situations? Sentiment analysis could presumably identify the symptoms of a supervisor’s unlawful behavior, and could be invaluable in an investigation of employee complaints. Should employers be expected to use tools like sentiment analysis to maintain a workplace free of unlawful behavior? No agency or court has said so, but we expect that some plaintiff’s lawyer will make that argument.
Of course there are measures an employer could take to avoid liability in each of these scenarios short of not adopting the technology. In the above, the employer (and individual managers) could foster communication through a robust complaint policy, training, and encouraging employees to bring issues to management’s attention as they happen. Complaints, once made, could be investigated promptly and timely and appropriate responsive action taken.
Some will argue that if you use technology for your benefit, you must also suffer the consequences of ignoring it when it could hurt you. A relatively low-tech example is tracking login and logout of employee computers. If an employer keeps this information, they “know” when employees are working. When compared to paystubs of non-exempt employees, it could also show an employer is not properly paying employees. Employers have been suffering from this for the last decade.
Technology has always been a double-edged sword. Our purpose is not to discourage its use; rather we want to encourage employers to be thoughtful and deliberate when adopting these powerful tools.