Thursday, March 17, 2016

Mixing Employee Surveillance and Big Data

No doubt, this is big data’s time.  Businesses have begun to make decisions based on data and data analytics, rather than relying on gut instincts or business acumen.  Data-driven business has proven to be successful, but we wonder about some of the data sources that are being used.

One source that concerns us is employee surveillance data.  Using the Internet of Things and the many available forms of employee badge technology, employers are able to gather all sorts of information about employees, including records of employee location and activity, recordings of employee conversations, and even employee engagement.  Using what’s known as an API, employers can then combine the surveillance data with other business data, including information on performance and productivity.  The combined information can be analyzed to reveal insights and even make predictions, including the ideal time and place for meetings or who should be promoted. Employers can add traditional human resources technology data from HR systems (like payroll and applicant tracking systems) into the mix to add to the data that’s analyzed.

So why does this concern us worry-wart employment attorneys?  Many reasons, including these:

  • The NLRB doesn’t love employee surveillance.  The NLRB handed employers a victory last year when it ruled that it was not necessary to bargain with the union before using GPS to surveil an employee the company believed was stealing time. Such victories are rare, however.  In both unionized and non-union settings, the NLRB may find an employer engaged in an unfair labor practice by using employee monitoring devices.  
  • Employees don’t like “Big Brother.”  The Pew Research Center has found that even when surveillance is used for safety, only 54 percent of employees found it acceptable.  When surveillance tracks their movements and conversations for other reasons, employees are even more wary.  Just ask the reporters at The Daily Telegraph.    
  • Privacy, privacy, privacy.  We’ve covered this before, but monitoring employees’ private conversations and non-work activity – deliberately or accidentally - can put an employer in hot water.  Whether they have a legal claim or not, most employees believe they have some expectation of privacy at work.
When employers mix surveillance and performance data, another set of issues arises.  These include access to the data, data integrity, and the potential for disparate impact if data is used as the basis for employment decisions.  Suppose, for example, that an employer uses the Hitachi Business Microscope to measure employee happiness and team contributions, and combines that data with sales metrics, using a data visualization tool or an algorithm.

Once analyzed, this data may allow the employer to predict who the next rockstar employee will be, or to spot patterns in productivity that impact the bottom line.  The employer will be tempted to act accordingly, basing its hiring, promotion, compensation, and termination decisions on what the data predicts. But what if the results are unreliable, inconsistent, or support a result that has a disparate impact on women or minorities?  If employees believe themselves to be the victims of unfair or unlawful treatment, employer liability will not be avoided by claiming “the data made us do it.”

This week, EEOC Chair Jenny Yang warned employers about the use of technology.  Specifically, Chair Yang commented that employers must use their data and technology in a “thoughtful way.”  We couldn’t agree more. 

Zelle LLP is a proud sponsor of MinneAnalytics’ People Analytics Conference (PACON) that will be held March 24, 2016 at the University of St. Thomas.  Posted by Kate Bischoff