Recently, we presented a program at a well-known analytics conference and set up an informational booth to meet attendees. Several attendees, most of whom were data scientists, approached our booth with inquisitive looks on their faces and asked, “Why is a law firm at an analytics conference?” Good question.

We explained that Jackson Lewis, as a leading workplace law firm, started a data analytics group dedicated to helping employers manage their workplaces using data–driven solutions. Our team is made up of a multidisciplinary team of lawyers who have long advocated on behalf of our clients using data analytics as well as data scientists and statisticians who help our clients manage their workplaces by leveraging the data they already maintain. Combining our data analytics capabilities with our collective knowledge of workplace law, we are well-equipped to provide clients with industry leading representation. These services include advice and counsel around the proper design and implementation of workplace analytics platforms. Oh, and we possess the ability to cloak analyses in privilege and mitigate the risk of disclosure. The inquisitive look then turns to interest – tell me more.

Attorney-client privilege generally applies to communications between an attorney and a client concerning legal advice. The privilege generally does not apply to underlying facts or data. So, while the privilege may apply to the analyses, it would not apply to the underlying data. Without an attorney present, the communications are not subject to privilege. While the privilege is maximized using outside counsel, there are intermediate levels of possible protection when in-house attorneys are involved. So, why does it matter?

It matters because modern database systems allow employers to maintain a treasure trove of data that may be retrieved through a few simple keystrokes. While this information can prove incredibly valuable to employers trying to optimize operations, streamline hiring, and assess employee engagement, etc., these data can be fodder for a discrimination claim. Plaintiffs and enforcement agencies increasingly are asking for copies of analyses as part of suits and investigations. Additionally, shareholders and “activist investors” may demand publication of different data points about a company – e.g., diversity and inclusion statistics. Especially in the time leading up to litigation, possessing the ability to perform analyses while maximizing the protections against disclosure is incredibly powerful.

Yes, that was a good question.


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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.