Tag: Analytics

Do You Want Employee DNA?

Our DNA is what makes each of us unique.  It also holds secrets.  It can tell us where may suffer from breast or colon cancer, where our ancestors are from, and what eye color our kids could have.  All of this is very, very cool.  But do we need to know our employee’s DNA?

Congress took action in 2008 to prevent DNA and family medical from getting into the hands of employers.  When the Genetic Information Nondiscrimination Act (GINA) passed in 2008, well over 90% of the House and Senate voted in favor.  GINA prevents employers from obtaining and using this information to make employment decisions.  The EEOC enforces GINA, working to prevent harassment, discrimination, and even retaliation.  With a bill currently before Congress, some of this could change.

As Jon Hyman recently explained, Congress is considering a bill that will allow employers to ask for personal and family medical histories, including DNA, provided the employee gives the information voluntarily.  If the employee refuses, he could not receive the 30% premium reduction incentive.

Imagine what a devil-on-a-shoulder of an employer could say if it had employee DNA and family medical histories.  “Don’t promote (or recognize) her, she’s got BRCA1, and her mom died of cancer.  She’s too expensive.” Or when a shoulder devil learns about an employee with a special needs child who has had several heart surgeries.  “Uff. That family’s health care costs are too high.  He’ll probably need so much time off and cost us a lot.”  While I’d like to believe this wouldn’t happen, it is exactly what plaintiff attorneys suspect will happen.

There already are services that can help reduce health care costs using employee DNA.  Take Newtopia.  Newtopia matches employee DNA, a fitness tracker, dietary log, supplements, and personalized coaching to reduce employer health care costs.  According to Newtopia, it really works.  For one employer, Newtopia’s program saved an employer over $1,400 per employee per year.  That’s a lot.  Something some employers can’t ignore when health care costs are skyrocketing.

Yet, we don’t want our employer to have our DNA.  I recently used Newtopia’s marketing video in a presentation to 30 HR executives.  When I looked at their reactions, several had their mouths agape.  I get the same reaction when I share this information with employment attorneys.  They know that employee DNA is sensitive and could create problems.  One, that many of them don’t want.

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AI & HR: Vendors

Artificial intelligence is amazing.  For HR, AI promises to eliminate the tsunami of transactions that plague us, find us the best of the best candidates, identify internal threats to our organization, and simply make life easier.  Things we all want!

Artificial intelligence is also creepy and super scary at times.  While it’s creepy Netflix’s AI knows what TV shows to recommend and Amazon’s AI predicts what I’ll need when I need it, they are helpful.  Yet, the scary are truly scary.  Microsoft’s artificial intelligent Twitter bot turned into a Hitler-loving racist in less than 24 hours.  Google’s artificial intelligent photo recognition tool identified African Americans as gorillas.  The reasons Microsoft turned off its bot and Google changed its tool was because of the discrimination risk regardless of whether it was a legal or public relations risk.

When HR looks to integrate AI into its operations, the potential for the same risks exist.  Using AI or machine learning to improve our operations and identifying talent means the potential for discrimination exists.  Even when we remove data related to protected class status, the potential still exists.  It is almost inescapable, but it can be manageable.

One of the first things we need to examine is our relationship with vendors and how to appropriately use their expertise to reduce discrimination risk.  We look to vendors to deploy AI.  (HR rarely has the expertise in-house to create and release AI.)  Vendors already help us do many, many things, like manage recruitment through ATSs, create payroll through T&A systems, and manage steps in our performance management process.  We rely on vendors.  Yet, our relationships with vendors does not shift the compliance risk from us to them.  Employers are always on the hook for the decisions they make whether a vendor or technology helped. 

Here are a few things to consider in the AI vendor relationship:

Vendor, Do You Know the Law?

I spend time with data and computer scientists who are on the cutting edge of AI.  Every time I meet with them, I bring up the issue of discrimination, and they give me a dumbfounded look, like “Why would that apply to me?”  Then, they say, “Well, I’ve never seen that.”  (See the image above.)  But as the mountains of evidence that AI and machine learning can discriminate, the more vendors are going to have their feet in the fire on this topic.  Talk with vendors about the risk of discrimination, the EEOC’s requirements, and if they can intelligently respond to your questions and have plans in place to respond to your needs, SUPER!  If they don’t, be skeptical.

Vendor, Explain Thyself

Remember our geometry teachers demanding that we “show our work?”  The EEOC and other state and federal agencies already require employers do the same.  With recordkeeping requirements and investigations, employers must show how they don’t discriminate.  When employers rely on AI to assist with making decisions, the EEOC and other agencies are going to ask how the AI worked and what it did.  When the AI is a vendor’s trade secret, will the vendor share?  While vendors may not need to explain how it works in detail today, you may need them to in the future so you can respond to agency questions.  Put this in your vendor contract.  Also, require vendors to give you input and the authority to change how the AI works.

Vendor Test Strips

Finally, when AI helps you make employment decisions, are those decisions in-line with the Uniform Guidelines of Employee Selection Procedures?  Are the criteria or decision-making of the AI really job-related and a business necessity?  Are you able to explain that?  Require vendors to validate, test, and revalidate their tools to your business and your positions.  The more testing to show discrimination doesn’t exist the more helpful and compliant the decisions will be.

I want to reiterate my HR technology pledge.  I don’t want to hold employers back from using tools that help them improve.  But with every new piece of technology – just like every new employee – risk abounds.  It’s the job of an employment attorney to help make the technology just a bit safer.

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