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Employment Law This Week - 04/02/2018: Big Data and People Analytics [VIDEO]

In this week's show, we take a look at the legal implications of an intriguing trend in the field of human resources: the use of big data and people analytics. These tools can assist employers in analyzing large data sets to help with hiring, recruiting, measuring productivity, evaluating fitness for promotion, and more. Frank Morris, has seen data analytics emerge as an increasingly important area of his practice:

"Businesses are using people analytics today to get away from what they've done in the past—just using headhunters, posting to job boards, seeking resumes, putting ads both online and in hard copy papers—to get a broader net, and to get a broader net of folks brought in who are going to be able to do the work that now needs to be done in an increasingly tight labor market, and to be diverse and inclusive at the same time. So, it really marks a change in the way the net is being cast, as well as some of the indicia that are supposedly being tested through the use of people analytics.”

The opportunity to increase efficiency, reduce costs, and improve decision-making is huge. The vast majority of U.S. employers consider people analytics important, and investors see the market potential. In recent years, billions of dollars have been invested in backing companies making applications that use this technology. But Deloitte’s HR Consulting branch reports that, as of early 2016, only 8 percent of companies were actually using predictive analytics. One reason that employers have been slow to deploy the technology is that it carries its own risks of legal exposure. Nathaniel Glasser recently collaborated with Frank Morris on an article looking at the legal implications of this technology. We asked him about the risks:

“The expectation with using people analytics is often that you'll reduce subjectivity and therefore decrease the risk of an intentional discrimination claim. Companies have to be careful that the algorithm that they use doesn't perpetuate biases or otherwise increase the risk of a disparate impact claim. Companies also must be aware of the record-keeping rules that apply to them, whether they're a private company serving the private sector, or a federal contractor that might be subject to different record-keeping requirements under the OFCCP.”

©2020 Epstein Becker & Green, P.C. All rights reserved.National Law Review, Volume VIII, Number 92


About this Author

Nathaniel M. Glasser, Epstein Becker, Labor, Employment Attorney, Publishing

NATHANIEL M. GLASSER is a Member of the Firm in the Labor and Employment practice, in the Washington, DC, office of Epstein Becker Green. His practice focuses on the representation of leading companies and firms, including publishing and media companies, financial services institutions, and law firms, in all areas of labor and employment relations.

Mr. Glasser’s experience includes:

  • Defending clients in employment litigation, from single-plaintiff to class action disputes,...

Frank Morris, Health Care Attorney, Epstein Becker Law Firm
Member of the Firm

FRANK C. MORRIS, JR., is a Member of the Firm in the Litigation and Employee Benefits practices, heads the Labor and Employment practice in the Washington, DC, office, and co-chairs the firm's ADA and Public Accommodations Group.

Mr. Morris' experience includes:

  • Advising clients on and litigating employment, labor, disabilities, non-compete, confidentiality, benefits, information access and privacy, wage and hour, and general litigation matters in state and federal courts and administrative agencies

  • Representing health care related entities, retailers, restaurants, and other hospitality related businesses, governmental entities, builders, owners, managers, architects, and lenders in public accommodation issues, including website accessibility, under the ADA and in fair housing, fair credit, and related state and local law matters

  • Serving as an expert witness in ADA and Fair Housing Act matters

  • Representing clients with respect to social media, Internet, and e-mail policies and litigation

  • Representing and advising clients, including Audit Committees, in Sarbanes-Oxley, Dodd-Frank, and other whistleblower litigation and conducting investigations

  • Advising clients on the range of employment and labor issues related to acquisitions, mergers, and RIFs and defending claims arising from those transactions

George Carroll Whipple III, Epstein Becker Green, Workforce Management Lawyer, Hiring Matters Attorney

GEORGE CARROLL WHIPPLE, III, is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He hosts the firm's innovative weekly video program, Employment Law This Week.

Mr. Whipple:

  • Counsels employers on workplace issues, including hiring and promotion, firing and discipline, wage and hour, and the implementation of employment policies, to ensure compliance with federal and state laws

  • ...