A Shaky Relationship: FCRA & Data Analytics

This past weekend, the New York State Bar Association has asked me to speak about data analytics in human resources at their fall conference.  This is one of my favorite topics, particular since data analytics have a huge impact on HR now and will to continue to in the future. This post and many others in the future will cover data analytics, its impact on HR, and how compliance can get tricky with the technology.

Big data, data analytics, HR analytics, people analytics, talent analytics – no matter what you call it – is changing how HR operates.  Vendors, like Gild, Pocket Recruiter, HireVue, and many, many others, offer algorithm-based technology to make traditional HR pain points as simple as a few clicks.  In the few clicks and the algorithm itself lies the potential for violations of various employment and labor laws.

Let’s start with the Fair Credit Reporting Act.  FCRA governs consumer reporting agencies in how they gather and report on particular individuals, including job applicants, even when these consumer reporting agencies are collecting public information.  In the employment context, these reports include criminal background checks, credit checks, and even social media searches when the reports are compiled by third parties and provided to employers.

In order to gather the information and get authorization from a job candidate, employers must follow strict disclosure requirements, give candidates notice that a report will be generated, and provide avenues for candidates to dispute information they believe is inaccurate.  Simply put, it can be incredibly easy to run afoul of FCRA.

One data analytics vendor, Joberate, has created an algorithm that takes publicly available data, like social media usage, and allows recruiters to determine whether a particular candidate could be interested in a new job.  Joberate generates a J-Score that can tell a recruiter whether an individual is in engaged in job-seeking behavior – the more job-seeking behavior, the more likely the individual would be interested in speaking with the recruiter.  By knowing individual J-Scores, recruiters aren’t wasting their time contacting passive candidates who aren’t really candidates at all.  They can be focused only on individuals who are ready to make a career change.

So what does FCRA have to do with this?  Potentially, a lot.  When a third party does any kind of search that includes information that may “serve as a factor in determining a person’s eligibility for employment” and gives that information to an employer, the Federal Trade Commission takes note.  Whether an individual is truly engaging in job seeking behavior may be considered a factor on whether a recruiter reaches out to that particular candidate and whether the individual is considered a candidate for employment.  So does an employer violate FCRA by using Joberate?

Loving Your Managers Means Training Your Managers

Last week, I had the privilege of presenting to two different groups on two very different topics.  The first was for the Marsh & McLennan Agency on the Bermuda Triangle of employment law – FMLA, ADA, workers’ compensation, and other leave issues.  The second was at MRA’s Minnesota HR Conference on investigations into sexual harassment and workplace bullying.  Both groups had great questions and were super fun.  Yet, even though the topics were different, one issue cropped up in both – manager training.

Manager training is crucial.  Managers are on the front line of production, products, marketing, and many other business aspects of any organization.  They are also on the front line of employment law issues.  For example, a manager who denies an employee’s request to alter her shift due to insomnia issues could be launching an employer headfirst into an ADA claim.  Or, a manager to engages in sexual banter with employees could create strict liability for a sexual harassment claim.  These exemplify why this training is downright essential.

Yet, it is hard to get managers together to learn about compliance issues.  First, they’re busy people.  Second, it’s compliance.  And, even when you do get them together and try to (gently) beat these issues into them, more often than not, they may forget or cannot recall the ins-and-outs of FMLA leave or the intricacies of your benefit plan.  This isn’t because managers don’t want to remember all of this information – it would just be impossible to do so.  They’re human.

Instead of rote memorization, managers need to know enough – enough to know when they need step into a situation and enough to know who to talk to.  This is all.

So how do you get to enough?  In my humble opinion, it takes real world examples and lots of time for questions.  With simulations and questions, managers get some experimental learning so they can identify when they need help.  It’s kinda like giving managers spidey sense.  As soon as they see, hear, or otherwise learn about a situation, we want manager’s spidey sense to go off and know what to do and who to talk to.  Good training can do this.

Here are the key ingredients for an effective manager training:

  • Managers need to understand their roles and responsibilities to prevent and stop inappropriate behavior (even if that behavior wouldn’t technically be unlawful).
  • Managers need to know enough about compensation, benefits, and other privileges employees may have (think leave and reasonable accommodations) to answer basic questions.
  • Managers need to know how to explain performance and conduct expectations and how to seek improvement of both.
  • Managers need to know who to talk to when issues arise and who to send employees to when they have questions the manager can’t answer.

Managing is really hard.  Employers succeed when they recognize this and equip managers with the training and development they need.

Photo credit: Helloquence available at unsplash.com