Category Archives: Employment Screening

L&E Evolution Part III: Managing Employees in a Digital Age

Source: Lorene D. Park, Labor Law Journal, Vol. 70 no. 2, Summer 2019
(subscription required)

The expectation that business will be done electronically, the trend toward paperless records, and ongoing advances in technology have birthed so many legal issues that, for employers, compliance may seem impossible.

For example, much was made of the promise of using artificial intelligence to screen job applicants, but it emerged that AI can both learn and perpetuate human biases that may violate Title VII. And using online employment agreements also may result in litigation over whether an employee “clicked” on a screen to agree.

What follows is an overview of key issues that have emerged for employers, organized around the lifespan of an employment relationship. We’ll start with the hiring process, covering accessibility, screening methods, electronic agreements, and more. Then we’ll cover computer use policies, trade secrets, wiretapping and electronic privacy statutes, data breach notification, social media, NLRA protections, and other issues that arise during the employment relationship. We’ll wrap with a discussion on privacy, including surveillance of employees, as well as issues surrounding termination of employment.

The Invisible Web of Work: The Intertwining of A-I, Electronic Surveillance, and Labor Law

Source: Richard A. Bales, Katherine V.W. Stone, UCLA School of Law, Public Law Research Paper No. 19-18, Last revised: June 30, 2019

From the abstract:
Employers and others who hire or engage workers to perform services use a dizzying array of electronic mechanisms to make personnel decisions about hiring, worker evaluation, compensation, discipline, and retention. These electronic mechanisms include electronic trackers, surveillance cameras, metabolism monitors, wearable biological measuring devices, and implantable technology. These tools enable employers to record their workers’ every movement, listen in on their conversations, measure minute aspects of performance, and detect oppositional organizing activities. The data collected is transformed by means of artificial intelligence (A-I) algorithms into a permanent electronic resume that can identify and predict an individual’s performance as well as their work ethic, personality, union proclivity, employer loyalty, and future health care costs. The electronic resume produced by A-I will accompany workers from job to job as they move around the boundaryless workplace. Thus A-I and electronic monitoring produce an invisible electronic web that threatens to invade worker privacy, deter unionization, enable subtle forms of employer blackballing, exacerbate employment discrimination, render unions ineffective, and obliterate the protections of the labor laws.

This article describes the many ways A-I is being used in the workplace and how its use is transforming the practices of hiring, evaluating, compensating, controlling, and dismissing workers. It then focuses on four areas of law in which A-I threatens to undermine worker protections: anti-discrimination law, privacy law, antitrust law, and labor law. Finally, this article maps out an agenda for future law reform and research.

Too Good to Hire? Capability and Inferences about Commitment in Labor Markets

Source: Roman V. Galperin, Oliver Hahl, Adina D. Sterling, Jerry Guo, Administrative Science Quarterly, Online First, March 28, 2019
(subscription required)

From the abstract:
We examine how signals of a candidate’s capability affect perceptions of that person’s commitment to an employer. In four experimental studies that use hiring managers as subjects, we test and show that managers perceive highly capable candidates to have lower commitment to the organization than less capable but adequate candidates and, as a result, penalize high-capability candidates in the hiring process. Our results show that managers have concerns about a high-capability candidate’s future commitment to the organization because they view highly capable candidates as having lower levels of organizational interest—meaning they care less about the mission and values of the organization and exert a lower level of effort toward those ends—and because they assume highly capable candidates have more outside job options, increasing their flight risk. Our findings highlight that capability signals do not necessarily afford candidates an advantage in selection, suggesting an upper limit on credentials and other signals of capability in helping candidates get jobs. Our study contributes to research on labor markets, human capital, and credentialing by offering a theory for why and when capability signals can negatively influence job candidate selection decisions.

Whom Do Employers Want? The Role of Recent Employment and Unemployment Status and Age

Source: Henry S. Farber, Chris M. Herbst, Dan Silverman, Till von Wachter, Journal of Labor Economics, Ahead of Print, February 19, 2019
(subscription required)

From the abstract:
We use a résumé audit study to investigate the role of employment and unemployment histories in callbacks to job applications. We find that applicants with 52 weeks of unemployment have a lower callback rate than those with shorter spells. There is no relationship, however, between spell length and callback among applicants with spells of 24 weeks or less. We also find that both younger and older applicants have a lower callback probability than prime-aged applicants. Finally, we find that applicants who are employed at the time of application have a lower callback rate than do unemployed applicants.

When Medical Marijuana Meets School Drug Policy, What Can States Do?

Source: Tom Keily, Education Commission of the States, EdNote blog, January 29, 2019

States have historically prohibited the use or possession of marijuana on school grounds, but with the arrival of medical marijuana, policymakers have begun to explore the intersection between school drug policies and medical marijuana laws. ….

Related:
How States Use Recreational Marijuana Revenue to Fund K-12 Education
Source: Jill Mullen, Education Commission of the States, EdNote blog, January 30, 2019

Revenue from recreational marijuana sales can be a large influx of cash for a state and, in many cases, vitally needed cash. Currently, 10 states and the District of Columbia allow the use of recreational marijuana. Colorado and Washington were the first states to legalize the green plant in 2012; other states have slowly followed. Each state deals with regulation and taxation differently, but a common use for marijuana tax revenue is spending on K-12 education….

Underrepresented, Underemployed: In the library-job search, some face special barriers

Source: Anne Ford, American Libraries, Vol. 49 nos. 11/12, November/December 2018

….White’s concerns represent only some of the potential obstacles that people from underrepresented demographic groups face when applying for positions in the library field—a field that remains about 86% white and 97% able-bodied (per the 2017 ALA Demographic Survey, which did not ask about sexual orientation.)

Because the library profession has been trying to diversify itself for a long time—particularly racially, and particularly through initiatives such as diversity task forces and diversity fellowships—some may be surprised that people from underrepresented communities still encounter barriers to library employment….

Does Hiring For ‘Culture Fit’ Perpetuate Bias? Two HR experts debate the issue.

Source: Mel Hennigan and Lindsay Evans, SHRM, HR Today, October 31, 2018

YES: Hiring bias is hiding beneath the cloak of company culture.
When successful tech companies popularized corporate culture as an asset to be fostered and shaped about 15 years ago, it didn’t take long for “culture fit” to become the new jargon used for hiring decisions that are based on personality traits. Considering culture fit as part of the overall package is a good thing for companies that have taken the time to carefully define and weigh the cultural components of the hiring decision. ….

NO: Assessing candidates for culture fit helps ensure their success.
Human capital has a direct impact on an organization’s financial performance, research shows. The people within an organization can provide a competitive advantage—or a disadvantage. Therefore, making the right hiring decisions is critical…..

The Strength of Whites’ Ties: How Employers Reward the Referrals of Black and White Jobseekers

Source: Fabiana Silva, Social Forces, Volume 97, Issue 2, December 2018
(subscription required)

From the abstract:
Sociologists commonly point to jobseekers’ racially segregated networks and employers’ discriminatory behavior to explain racial inequality in employment. Network scholars argue that, given segregated networks and black and white employees’ unequal position in the labor market, employers’ reliance on employee referrals reproduces black disadvantage. Scholars of discrimination focus instead on employers’ unequal treatment of equally qualified black and white jobseekers. Drawing on an original experiment with a sample of white individuals with hiring responsibilities, I seek to bridge these literatures by examining whether respondents’ racial prejudice affects how they reward employee referrals of black and white applicants from black and white employees. I use a measure of implicit prejudice that is resistant to social desirability and that can capture biases among people who genuinely believe they are unbiased. Whether evaluated by low-prejudiced or high-prejudiced respondents, white applicants benefit greatly from same-race referrals. In contrast, black applicants do not benefit from same-race referrals, even when they are evaluated by low-prejudiced respondents. In fact, black applicants only benefit from having a referral when two conditions are met: the referring employee is white and they are evaluated by a relatively low-prejudiced respondent. These findings suggest that in addition to their disadvantage in access to employee referrals, black jobseekers suffer from a disadvantage in returns to these referrals.

Posting and Slotting: How Hiring Processes Shape the Quality of Hire and Compensation in Internal Labor Markets

Source: JR Keller, Administrative Science Quarterly, Administrative Science Quarterly, Volume: 63 issue: 4, December 2018

From the abstract:
Recent research highlights the benefits of internal hiring––filling a job by hiring a worker currently employed by the organization––and more than half of jobs are filled that way. Yet we know surprisingly little about the processes that facilitate the movement of workers across jobs within firms. I address this gap by first detailing the portfolio of internal hiring processes employed by large organizations, focusing on posting and slotting. Posting is a predominantly market-based process in which a manager posts an open job and invites interested candidates to apply, whereas slotting is a predominantly relational process in which a manager personally identifies a preferred candidate and “slots” him or her into an open job. I then examine how key differences between posting and slotting shape two outcomes of importance to firms and workers: quality of hire and compensation. My analysis of 8,107 internal hires at a large U.S. health-services firm reveals that outcomes for internal candidates depend, in part, on the nature of the process used to facilitate the movement from one job to the next; compared with slotted employees, workers who enter a job through posting have higher performance ratings, earn higher salaries, and are less likely to exit the firm. My findings suggest that the posting process improves the quality of hires by expanding the pool of potential candidates at the recruiting stage and by disciplining the information managers use to evaluate candidates at the selection stage. As well, internal candidates hired through posting are more likely to initiate salary negotiations and negotiate more competitively, resulting in higher initial salaries.