Data is everywhere. There are 11 billion devices connected to the Internet and the number is growing. All of these devices create, share, and use vast amounts of data, some of which can be used to make business decisions and predict outcomes. But could an employer get into trouble for having too much? You betcha.
Multiple HR technologies promise to gather and analyze data that predicts employee success. Suppose an employer’s data analysis shows that success is correlated with some factor that cannot legally be considered. If the employer reviews the data and uses any part of it, will it be able to protect itself from accusations that it considered prohibited information?
Other technologies search and sort employee email to uncover inappropriate or illegal activity. This significant investigative tool offers real benefits. But is the employer obligated to act on any and all inappropriate or illegal activity it uncovers? Suppose a search for evidence of financial improprieties turns up evidence of sexual harassment or racial hostility? Does the employer have a duty to act once it knows that unlawful conditions may exist in its workplace? If a sex or race discrimination claim is made against the employer, is the data discoverable?
Humanyze and Hitachi’s Business Microscope record employee conversations to identify leaders, employee happiness levels, and more. The recordings may or may not be shared directly with the employer, but are analyzed by the third-party vendors to create dashboards and other data visualization that can help employers make decisions based on employee interactions. What happens when the devices record racist or sexually harassing comments? What if the recorded conversations include NLRA-protected concerted activity? The employer’s vendor may be acting as its agent, capturing and analyzing the data, and the employer may have difficulty establishing that it didn’t know what the data showed.
In addition to their responsibility to maintain a workplace free of unlawful discrimination and harassment, employers have a duty to protect worker health and safety. Does the ability of an employer to monitor an employee’s driving speed create a duty to take action every time it catches an employee exceeding the speed limit? At what point is it negligent for an employer to ignore unsafe behavior, and what legal liability might result?
What an employer knows or should have known is a fundamental consideration in a variety of employer-employee disputes, including claims of negligence and harassment. If an employer knows of adverse, unlawful, or dangerous conditions and fails to take appropriate responsive action, it may be liable for resulting damages. Whether and to what extent plaintiffs’ lawyers will be successful in using the existence of aggregate data to establish employer liability remains to be seen, but it is not a possibility employers should ignore.
More data is not always better. Employers should carefully consider the potential risks and costs, as well as the benefits, of collecting and analyzing data. Data security and privacy, as well as issues of liability for discrimination and negligence, should be recognized and considered each time a decision about collection and analysis of data is made.
Posted by Judy Langevin and Kate Bischoff