Hopefully by now you have recognized the benefits of workplace analytics and are becoming more comfortable understanding any associated risk. Does the law provide any guidance? As we discussed in a prior blog entry, some government agencies have issued reports, weighing in on the use of workplace analytics. The Equal Employment Opportunity Commission also held a public meeting last Fall regarding the use of workplace analytics. To be sure, the law around the use of analytics is still developing and it is likely that we will see additional guidance in the future.

For now, employers must look to the existing body of law when designing analytics platforms. They must consider issues of disparate treatment, disparate impact, prohibitions against certain pre-employment inquiries, and data security concerns, to name a few. There has been concern expressed by some, including the EEOC, about the presence of bias in employee selection algorithms. But there has been little recent guidance provided to employers about how to address this issue. And there may not need to be.

In 1978, a group of federal agencies, including the EEOC and Department of Labor joined to issue the Uniform Guidelines on Employee Selection Procedures (UGESP) to “incorporate a single set of principles which are designed to assist employers, labor organizations, employment agencies, and licensing and certification boards to comply with requirements of Federal law prohibiting employment practices which discriminate on grounds of race, color, religion, sex, and national origin. They are designed to provide a framework for determining the proper use of tests and other selection procedures.”

While UGESP may not have been drafted with the use of modern analytics platforms in mind, they provide a roadmap for the employer using modern analytics programs to effectuate employee selection decisions. Use of analytics platforms to make selection decisions likely fall under UGESP and its application to “other selection procedures.” Generally, under UGESP, when a selection procedure has an adverse impact against any protected group, that selection procedure must be validated. While there are a few ways to properly validate a selection procedure (here, an algorithm), generally, to be valid, a selection procedure must be shown to be legitimate and consistent with performance of the job. And employers must ensure that there are no other selection mechanisms that may be used and cause less impact.

So, while UGESP was drafted more than thirty years ago, it may just be the roadmap employers have been looking for when designing cutting-edge analytics platforms. In a sense UGESP is timeless.

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Photo of Eric J. Felsberg Eric J. Felsberg

Eric J. Felsberg is a Principal in the Long Island, New York, office of Jackson Lewis P.C. and the National Director of JL Data Analytics Group.

As the National Director of JL Data Analytics Group, Mr. Felsberg leads a team of multi-disciplinary lawyers…

Eric J. Felsberg is a Principal in the Long Island, New York, office of Jackson Lewis P.C. and the National Director of JL Data Analytics Group.

As the National Director of JL Data Analytics Group, Mr. Felsberg leads a team of multi-disciplinary lawyers, statisticians, data scientists, and analysts with decades of experience managing the interplay of data analytics and the law. Under Mr. Felsberg’s leadership, the Data Analytics Group applies proprietary algorithms and state-of-the-art modeling techniques to help employers evaluate risk and drive legal strategy. In addition to other services, the team offers talent analytics for recruitment, workforce management and equity and policy assessments through predictive modeling, partners with employers in the design of data-driven solutions that comply with applicable workplace law, manages and synthesizes large data sets from myriad sources into analyzable formats, provides compliance assessment and litigation support services including damage calculations, risk assessments, and selection decision analyses, and offers strategic labor relations assistance including determination of long term costs of collective bargaining agreements, review of compliance with collectively bargained compensation plans and assessment of the efficacy of training programs. The JL Data Analytics Group designs its service delivery models to maximize the protections afforded by the attorney-client and other privileges.

Mr. Felsberg also provides training and daily counsel to employers in various industries on day-to-day employment issues and the range of federal, state, and local affirmative action compliance obligations. Mr. Felsberg works closely with employers to prepare affirmative action plans for submission to the Office of Federal Contract Compliance Programs (OFCCP) during which he analyzes and investigates personnel selection and compensation systems. Mr. Felsberg has successfully represented employers during OFCCP compliance reviews, OFCCP individual complaint investigations, and in matters involving OFCCP claims of class-based discrimination. He regularly evaluates and counsels employers regarding compensation systems both proactively as well as in response to complaints and enforcement actions.

Mr. Felsberg is an accomplished and recognized speaker on issues of workplace analytics and affirmative action compliance.

While at Hofstra University School of Law, Mr. Felsberg served as the Editor-in-Chief of the Hofstra Labor & Employment Law Journal.