HR Tech’s Adverse Problem

While I totally loitered at the Society for Industrial and Organizational Psychology Conference (I was a presenter, just failed to register – oops), I’d thought a post on what we talked about yesterday and a bit about what’s happening at the University of Minnesota’s HR Tomorrow Conference today: adverse impact, why it’s important, and why you should care.

Adverse impact (known as “disparate impact” by the lawyers) is when groups of individuals described by a particular characteristic is negatively affected by an employer’s decision, selection tool, or policy when that decision, tool, or policy is neutral on its face or does not intend to actually have a negative impact.  For example, if an employer uses a psychological test that filters out African Americans, the test would have an adverse/disparate impact on African Americans.

The concept of disparate impact has been around for a long time.  The United States Supreme Court in Griggs v. Duke Power formally recognized the claim.  Since that time, the law has been debating many aspects of the claim, including what statistical models to use, does the doctrine apply if the rule intends to discriminate, how does impact different from treatment, and will the doctrine apply to all the HR technology out there.  While this post could go on-and-on about all of these questions, this last piece is really important for HR tech buyers, and the answer is probably.

We already know that lots of HR technology vendors, including the fancy-dancy stuff like artificial intelligence, machine learning, algorithms, etc., market their products as the only way to find the best candidates, identify problem employees, and make all your dreams come true.  When these technologies are used, their use could create a disparate impact.  How do we know?  Because we’ve already seen how these technologies discriminate outside the world of HR – see photo ID that classifies African Americans as gorillas, recidivism tools that increase prison terms for African Americans, etc., so it is highly likely that they could operate the same way when it comes to HR tech.  Arguably, HR tech has the potential to greatly impact because the decisions HR makes affect individual’s livelihood.

So what should we do about diverse impact?  While there are many, many things we need to do to limit the potential that the HR tech we use doesn’t discriminate, we should start with two things.  First, we have to know how the technology works and the data it uses to make recommendations.  This requires vendors to be open and honest with us, lose the marketing gloss, and really explain their products. Can they explain how the tech works?  Can they explain how the tech works on our organization’s data?  Could the data have bias baked in?  (The answer to this last one is probably yes, especially if we’re looking at hiring or performance data.  There’s just no escaping it.)  When vendors are transparent and honest about these issues, we can take more steps to mitigate any disparate impact the tech might have.

Second, we need to test and test and test to see if the tech creates the disparate impact.  Lawyers and data scientists talk about validation as the test.  For lawyers, validation means under the Uniform Guidelines for Employee Selection Procedures.  For data scientists, validation means how strong the correlations are statistically.  This definitional problem causes more debate and potential confusion.  So, we need to find vendors who understand, appreciate, and can articulate validation under both tests.  Because the HR tech world is a bit like the wild, wild west, it’s hard to find them. (Trust me, they’re out there.  I’ve probably met them or at least brow-beat them from a distance on this very issue.)

All that said, I want HR to understand and appreciate that these issues could exist and start playing an active part in fixing these issues.  While I’d love for everyone to trust each other, placing blind faith in a vendor is not in our organizations’ best interest.  Holding people accountable is one of the strengths in HR.  We should use it here too.

One final note, I love this stuff.  This tech is going to revolutionize how we do business.  I just want to do it in such a way that doesn’t create that much risk for our businesses.  Remember my pledge?

 

Photo by Patrick Lindenberg on Unsplash

More Ways Not To Fire

Last May, I offered my tips on terminations, including not firing via cable news ticker.  Apparently, my tips went unheeded by some prominent terminators.  So, in an update to that post, I offer some more tips.  (Warning:  This post comes laced with sarcasm.)

Don’t fire someone when they have a stomach bug.  When someone is vomiting or plagued with diarrhea, it’s considered bad manners to terminate them when they are on the toilet. Wait until you can see their face without invading a bathroom.  Heck, what you’re about to tell them might make them sick all over again.  Let them get past the first round of sickness.

Don’t fire someone within hours of his pension vesting.  The Employee Retirement Income Security Act is a real thing.  ERISA Section 510 retaliation claims are a real thing.  Section 510 states that it is unlawful to discharge for the purpose of interfering with the attainment of a right (i.e. pension).  If you terminate someone to avoid pension liability, it’s likely that a Section 510 claim is in your future.  This is on top of any claims the individual may have if he is in the public sector.

Don’t be mean.  The very act of terminating someone is already seen as mean.  Not many people want to work for a mean employer.  Mean employers have trouble finding people to fill roles.  Mean employers get nasty Glassdoor and Indeed reviews.  You do not want to be that employer.  Try to give the individual you are terminating as much dignity as possible.  Don’t let them find out via press release.  Be brave and do it face-to-face.  Anything else is seen as cowardice.  Post-it notes, emails, texts, cable news ticker, tweets, Slack message, etc. are all cowardly ways to terminate.

I don’t mind firing people.  By the time my clients call me, they have toiled with the decision to terminate, they’ve lost sleep over it, and have thought of all the other possible alternatives. So, I’m reaffirming their gut instinct and offering my theoretical airbags and seatbelts to the term.  I’m also advising them on how not to fire badly.  Please read all of my tips on how to fire and then heed them.

 

Photo by Jamie Street on Unsplash

Chatbots Chatting

If you use the internet, you’ve used a chatbot.  It’s quite possible you didn’t even know that you were.  Chatbots are cool – using one is like texting a new friend without emojis.  (My favorite is the Resistbot.)  As HR professionals, we see chatbots in recruiting, onboarding, and employee relations.  Chatbots offer quick, easy conversations with candidates and employees to help ease the burdens of busy HR folk.  Yet, as chatbots become increasingly easy to implement and cheaper, we should be careful of the risks.

 

Picking Up Issues

ChatbotLast year, I attended a vendor demonstration of a chatbot.  The demonstration was “live” so we’d know that the chatbot’s conversation was not canned.  The sales guy (and I intentionally say “sales guy” as he clearly had never worked in HR before) asked his Watson-based chatbot the following question, “How much time is available to take a leave?”  The answer from the bot, “Hannah, you have 72 hours (9 days) of PTO…”  Let that ruminate in your brain for a second.

 

Two of us in the audience immediately raised our hands.  “That’s not the right answer to that question,” we said in near unison.  Why not?  Because PTO is not leave and leave is not PTO.  The term “leave” brings up things like FMLA, pregnancy, and reasonable accommodations.  While PTO can be used during FMLA or leave when it is an accommodation, PTO is not a substitute for legally required leave.  The right answer would have been, “How do you intend to use leave?”  The use of leave would give an indication of whether FMLA or ADA will come into play.  If Hannah said “I’m pregnant” then the chatbot could say she could have 12 weeks available under the FMLA.  Twelve weeks is significantly more than 9 days.

A human in HR would probably be able to identify an issue whether the chat came from a potential applicant, seasonal employee, or a team member.  HR and recruiting professionals know that certain words when uttered by employees trigger certain laws.  Unfortunately for chatbot vendors, the list isn’t well defined or kept somewhere so that they can feed it into their bot and the bot will then know as much as a human.  Knowing all the words also means knowing employees, their situations and needs.  Until chatbots get really human-like, they will miss issues, including things like requests for reasonable accommodations, reports of harassment, or work injury issues.  (Imagine someone chats about a boss who grabbed a breast.  How will a chatbot respond to that?)

Why is this Important?

If anyone misses a legal issue – like Hannah’s leave issue – the clock starts ticking under the law.  If Hannah’s question about leave availability related to a pregnancy, she could now believe her company will only give her 9 days off for the birth of her child.  While we’d hope Hannah would reach out to an HR human, she might not.  She might think she can only take off two weeks and would be expected to return to work.  This could spark her to leave us, tell her friends how bad we are as employers, or even start a lawsuit once she learned of the FMLA.  This chat and the lack of follow-up could be a violation of the FMLA or state pregnancy leave laws.

The other reason this is particularly important is that there is a record of what the chatbot said.  Most chatbot conversations are recorded.  So, if Hannah meets a plaintiff’s attorney, her attorney will be able to request a record of her conversation with the bot.  Her attorney would be able to tell the date and time of Hannah’s question and (potentially) the lack of follow-through from the company to deal with Hannah’s question and request.  This is great evidence.

If Your Gonna Use a Bot…

While there are risks, good things exist in chatbots too.  “How much PTO do I have?” or “How do I get my paystub?” are great questions chatbots can answer without interrupting an HR pro’s day. This is why chatbots are hugely useful.  So, if you’re going to take advantage of this significant benefit, here’s what I recommend:

  • Have someone read through the chat records. You might find trends that will help develop training or modify your practices or even onboarding to help ease questions.  You’ll also pick up on the leave/FMLA issue described above.  Reading chats takes significantly less time than engaging in the conversations themselves, so please do it.
  • Talk with your vendor about compliance issues. Ask how would the chatbot respond to words like “leave,” “sick,” “boob,” and “hostile.”  These are just some of the big issues, and if the vendor stumbles here, move on to the next one.
  • Test the chatbot on these compliance issues. Pretend you’re going be an employee.  Test how the bot will work.  Your own interaction will help determine the ease of the chatbot and whether you want employees interacting with it.
  • Ask your vendor to do compliance issue updates. We get to hold vendors accountable only if we hold them accountable.  So, seriously, ask for compliance whether it is a new HCM or a chatbot.

We are all going to use more and more chatbots in HR and everywhere else.  We have to be careful as this is another way we talk to employees.  When we are not mindful of our conversations with employees, we fail.

 

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Some of Us Hear You

It’s February, Black History Month, and the return of #BlackBlogsMatter.  I love this time of the year – not only because we champion the contributions of African Americans, but because this is a great opportunity for some of us to challenge our thinking, our perspectives, and quite frankly, our privilege.

This is hard.  Many people believe that our country gives everyone the chance to succeed.  The point to the “self-made” folk like Oprah, Jay-Z, or Robert Johnson as people who have made it.  However, when we point to these wildly successful people, we are also suggesting that those who haven’t made it just haven’t worked hard enough.  This is a problem – maybe even the problem with pushing the “pull yourself up from the bootstraps” American narrative.  Our society and our workplaces have been built on this narrative with built-in advantages for white people (particularly white men).

Here are some ways we may be perpetuating the privilege:

  • We recruit from our networks, begging our current employees to mine their LinkedIn and Facebook networks to find our next great hire. However, there’s overwhelming evidence that we flock to people who look like us, creating networks without a great deal of diversity.
  • We recruit from educational institutions we or one of our friends graduated from. While some have made great strides, white folk still take up a greater percentage of college graduates.
  • Unconscious bias affects our hiring and promotions. We have started doing blind hiring, which can help, but we cannot hold this technique as the end-all, be-all that solves the problem.
  • We avoid having discussions of race. While our avoidance makes for a great SNL skit, our avoidance only allows the problem to continue to fester.

We have to be more proactive, more intentional with how we build workplaces that accurately reflect the world around us with the diversity of race, age, religion, gender, thought, etc.  If we don’t, we’re missing out.  Missing out on better decision-making, better business, and a better place for everyone.  This means taking a hard look at our current practices, having hard discussions, and confronting the problems whether we intentionally created them or not.  We can’t simply watch the documentaries, revise policies, or give lip service to our desire to build more inclusive workplaces.  We actually have to self-reflect as organizations and individuals even though the guilt seizes us with paralysis.

I don’t pretend to have all the answers here.  I do know that the best way to start is by listening to those voices we haven’t been very good about listening to and then lending our voices to help.  In a recent blog post, Jazmine Wilkes (a member of the #HRTribe) lamented the lack of white voices speaking up to combat the ongoing prejudice and injustice facing so many.  To Jazmine, Sarah, Keirsten, Tamara, Janine, Rachel, and all the folks writing this month for #BlackBlogsMatter, I hear you and here’s my voice.

 

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Priorities, Priorities

On Tuesday, The New York Times published an article – complete with advice – about the office fridge.  Give employees only a specific amount of space in the refrigerator, ban certain foods, if an employee violates the rules, take fridge privileges away.  Seriously, this was the advice listed in the article.  Don’t we have bigger things to worry about?

Yes.  Yes, we do.  We’ve got a national harassment issue.  We have new laws.  We have super low unemployment so recruiting is tough.  Technology driving head-long into our work lives.  Employees are facing more challenges both at work and at home affecting their abilities to get their jobs done.  All of these issues are more important than the office refrigerator.

Not gonna lie, the focus on the fridge irks me.  We have bigger fish to fry.  Yet, it is human nature to find the “easier” issue that can be solved.  Fixing the fridge shows immediate results, whereas growing a positive culture takes significantly more time and isn’t easily measured.  I get it.

The same is true with Mitchell Hamline’s HR Compliance Certificate Program.  I’m honored to be an adjunct professor in the program and one of the authors of the case study used in the program.  My teaching partner, Ali McGinty, and I added a kegerator to our fictional workplace that is rife with compliance issues.  The workplace has no affirmative action program despite having a large Department of Defense contract, potential wage disparities, misclassification issues, recruitment issues, employment agreement issues, outsourcing problems, etc.  Yet, so many of students jump on the kegerator as the first problem they would solve.  I’m taking aback each time.  It surprises me as I assume that employers hire who they think are responsible adults, yet we want to remove alcohol every time we see it.  But when I look at all the other issues plaguing our fictional software company, I see that kegerator is easy and immediate.

I’ve got a challenge for you.  Write down the issues you want to tackle.  Ask some managers and some employees about what they think you should focus on.  Consider each issue carefully.  What will take you more time?  What will take more effort or resources?  How will you know if issues have been resolved?  Once you have a list, ask your leadership where they want you to spend your time.  Then, prioritize the list.  Here are some priorities I recommend – priorities more important than the fridge:

  • Renewing a commitment to effective training on the perils of harassment and discrimination
  • Revising employee handbooks that reflect new laws
  • Training managers on basic management skills like having difficult conversations with employees
  • Implementing effective performance management systems

HR guru (and my friend), Kelly Marinelli, recently tweeted that audacity is her word for 2018.  YES!  We need to have the audacity to take on the biggest challenges facing our organizations.  That probably does not include the office fridge.

 

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Overreacting

James Damore is suing Google, alleging the tech giant “systematically discriminates” against conservative white men.  While being both conservative (i.e. political affiliation) and male are protected class statuses in California, it’s not clear to me that Mr. Damore’s case has much merit.  (For Pete’s sake, he claimed women are not biologically capable of being good software engineers.)  Yet, it is a great example of an overreaction and an attempt to halt diversity initiatives nationwide.

Mr. Damore’s lawsuit was predictable.  He told us he was going to bring one.  It is also typical.  Affirmative action programs at colleges were attacked when white applicants were not getting in at the same rate as before.  A Christian sued Ford and its affiliates when the car manufacturer came out in support of gay marriage.  These kinds of lawsuits attempt to scare organizations into worrying that their diversity initiatives may swing too far, launching them head-first into litigation.  They may be effective on occasion, but as a scare tactic, it may be just as effective.

What should HR do? We should follow some of the same advice we’ve been bandying about for decades:

  • Dip into all sorts of candidate pools
  • Seek out affinity groups at colleges and universities
  • Think of churches/temples/mosques as places of worship and potential sources of candidates
  • Post job announcements EVERYWHERE
  • Offer training (maybe even English) to high-potential employees
  • Treat your employees with care
  • Draft policies with care to not affect a particular group
  • Validate selection programs for disparate impact
  • Seek out the opinions of employees of all shapes and sizes, genders, races, religions
  • Accommodate employees without putting up theoretical barriers
  • Acknowledge differences in the workplace and celebrate them
  • Listen

(Please note, this is not an exhaustive list.)  None of these tactics or strategies are discriminatory.  Only hiring women can be.  Setting specific quotas can be.  Only offering benefits for referring minorities or women can be.  We have to be careful and mindful that whenever we use a protected class status as a basis for hiring, we get closer to violating the law even when our intentions are good, moral, and just.

In response to the sexual harassment revelations, the Time’s Up Now group, 50/50 by 2020, pledges to get to 50 percent representation of women in Hollywood by 2020.  There’s a James Damore in Hollywood too.  While I don’t doubt that plenty of women are qualified or over-qualified for positions in Hollywood, the Hollywood version of James Damore is planning his attack.

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