Last week, the Equal Employment Opportunity Commission
sued a janitorial and facilities management company for its failure to keep
adequate recruitment records. The EEOC alleges that the company used
“criminal
history assessments” in its hiring decisions but chose not to maintain
those records in violation of Section 709(c) of Title
VII. While the case is interesting because it was initiated through a
relatively rare Commissioner’s Charge, it also serves as a great reminder that
employers are required
to keep employment selection records available for EEOC inspection.
This case got us thinking about the recordkeeping when
employers use big data and analytics in the recruitment and hiring
process. The EEOC’s requirements are designed to help that agency
determine if a particular protected class is disadvantaged by an employer’s
testing or other selection procedures. Big
data and talent analytics are used in selection more and more often these
days. If the EEOC comes knocking on an employer’s door wanting to know
about hiring decisions aided by algorithms, will the employer be able to churn
out the required information or records? How easy will it be to access
the information? After the required recordkeeping time period, can an
employer destroy the electronic records and information associated with analytics?
How can a buyer of HR tech ensure that the tech will be responsive to the
demands of an EEOC review?
We don’t have all the answers to these questions, and
suspect that nobody does yet, but here are some tips that may help employers
avoid problems with the EEOC if they use big data and analytics in their hiring
process:
1. Know
how the algorithm works. Big data can be a mystery. It’s like
putting HR data into a box, shaking it a bit, and producing an amazing result
that makes HR’s life easier. But the EEOC is not going to accept “It’s
magic!” as a response to its inquiries about hiring criteria. Employers need to
know enough about the software and processes they use to explain what their
analytics measure. They also need to be able to produce records showing
how the analytics reached their results.
2. Keep
all versions of the algorithm. One of the advantages of analytics is
that the algorithms
can learn and improve almost constantly as new data is entered. This
improvement can be great for the employer, but improvements can create an issue
when the EEOC asks what the selection procedures and criteria were on a
specific date or during a particular timeframe. If the earlier,
unimproved algorithm isn’t kept, the EEOC may conclude that the employer is not
keeping proper records.
3. When
the time comes, destroy what you don’t need. The EEOC requires that
employers keep selection
records for one year. With seemingly endless storage space
(particularly with cloud or SaaS-based tech), it may seem easy and cheap to
keep records longer than necessary, but old information can create problems.
Just like purging old paper files, employers must be able to destroy
unnecessary records.
4. Test the
vendor. Vendors of HR tech may not be familiar with the EEOC’s
requirements. Find out if your vendor knows the law by asking good questions.
Vendors not familiar with anti-discrimination law and EEOC requirements need to
get educated. They should be able to support their customers when the
EEOC comes knocking. If your HR vendor contract doesn’t specify that the vendor
understands and complies with anti-discrimination law, insist that those terms
be added to the contract. If the vendor isn’t prepared to support its customers in
responding to an agency investigation, look for a vendor who will.
Yes,
we’ve been concerned about big
data and HR
tech for a while. And no, we’re not trying to stop the innovation
that we know will improve HR procedures and processes. But as the EEOC
and other agencies try to keep up with where technology is taking HR, we hope
employers remain mindful of the law and the requirements of the agencies that
enforce it.
Posted by Judy Langevin and Kate Bischoff
