Category Archives: Management

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.

Phishing Scams: Should Employees Be Held Accountable?

Source: Maureen Minehan, Employment Alert, Volume 36 Issue 12, June 13, 2019
(subscription required)

An administrative assistant receives an email from a senior executive asking her to purchase 100 $25 gift cards to be distributed electronically to staff as a thank you for their hard work. The employee purchases the cards, charging the expense on her personal credit card. She sends the executive the cards as requested and submits the charge for reimbursement. When the accounts payable team contacts the executive for approval of the reimbursement, everyone gets a big surprise—the executive never asked for the gift cards. The employee had fallen for what’s known as a “phishing” scam and the scammers have already emptied the cards of their balances.

While the employee is contrite, the executive does not want to reimburse her because she believes the employee should have known better. The entire company had recently received correspondence from the IT department about phishing scams and how to avoid becoming a victim. The employee argues you have an obligation to pay her because she was acting in good faith to perform what she perceived as a duty of her job. The CEO of your organization wants to fire her for putting the company at risk.

If this sounds far-fetched, it’s not. A similar scenario recently played out at a company in the Washington, D.C. area. In the end, the company reimbursed the employee for half of gift cards’ costs, but hard feelings remain on all sides…..

Why do employers keep providing the same ineffective sexual harassment training?

Source: Rebecca Grant, Quartz, June 19, 2019

….Training isn’t the only place most sexual harassment programs fall short. Lilia Cortina, a professor of psychology, women’s studies, & management at the University of Michigan, has found that many organizations flounder in how they handle complaints. Cortina’s research reveals that companies’ formal grievance systems fail for four reasons: they are rarely used; people who file complaints regularly face retaliation; retaliation has negative long-term career and health consequences; and formal complaints rarely lead to the removal of the harasser. Filing a complaint can do more harm than good, if it does anything at all.

Given that current efforts to address workplace sexual harassment are clearly not working, what does an effective program look like? Cortina said the starting point has to be a commitment from leadership to meaningful cultural change, rather than checking a box or looking for a quick fix….

…..When harassment is identified, it’s important that discipline is consistent and does not give the appearance of undue favor. For example, the EEOC found that companies that successfully created a culture of non-harassment “acknowledged and owned” complaints, instead of attempting to bury them, and were willing to hold high-ranking and highly-valued employees accountable. In addition, studies show that harassment thrives in workplaces where there’s a stark power imbalance between men and women, so hiring and promoting more women, and compensating them equitably, can undermine the root causes.

There may always be people who abuse their power and act badly in opportunistic situations, but that doesn’t mean organizations are powerless to stop them…..

At Work, Expertise Is Falling Out of Favor

Source: Jerry Useem, The Atlantic, July 2019

These days, it seems, just about all organizations are asking their employees to do more with less. Is that actually a good idea? ….

…. Minimal manning—and with it, the replacement of specialized workers with problem-solving generalists—isn’t a particularly nautical concept. Indeed, it will sound familiar to anyone in an organization who’s been asked to “do more with less”—which, these days, seems to be just about everyone. ….. The phenomenon is sped by automation, which usurps routine tasks, leaving employees to handle the nonroutine and unanticipated—and the continued advance of which throws the skills employers value into flux. ….

….Minimal manning—and the evolution of the economy more generally—requires a different kind of worker, with not only different acquired skills but different inherent abilities. It has implications for the nature and utility of a college education, for the path of careers, for inequality and employability—even for the generational divide. And that’s to say nothing of its potential impact on product quality and worker safety, or on the nature of the satisfactions one might derive from work. Or, for that matter, on the relevance of the question What do you want to be when you grow up?

How deep these implications go depends, ultimately, on how closely employers embrace the concepts behind minimal manning…..

The Problem With HR

Source: Caitlin Flanagan, The Atlantic, July 2019

For 30 years, we’ve trusted human-resources departments to prevent and address workplace sexual harassment. How’s that working out?

…The experience left me with a question: If HR is such a vital component of American business, its tentacles reaching deeply into many spheres of employees’ work lives, how did it miss the kind of sexual harassment at the center of the #MeToo movement? And given that it did, why are companies still putting so much faith in HR? I returned to these questions many times over the course of the following year, interviewing workplace experts, lawyers, management consultants, and workers in the field.

Finally, I realized I had it all wrong. The simple and unpalatable truth is that HR isn’t bad at dealing with sexual harassment. HR is actually very good at it…..

…..But the real reason many workers don’t love human resources is that while the department often presents itself as functioning like a union—the open door for worker complaints, the updates on valuable new benefits—it is not a union. In a strong job market, HR is the soul of generosity, making employees feel valued and significant. But should the economy change, or should management decide to go in another direction, HR can just as quickly become assassin as friend…..

….If employers judged HR departments by their ability to prevent sexual harassment, most would have gotten a failing grade long ago. What HR is actually responsible for—one of the central ways the department “adds value” to a company—is serving as the first line of defense against a sexual-harassment lawsuit. These two goals are clearly aligned, but if the past year has taught us anything, it’s that you can achieve the latter without doing much of anything at all about the former…..

Speak Nice or Else: The Evolving Law of Nondisparagement Provisions in the Workplace

Source: Anthony W. Kraus, Labor Law Journal, Vol. 70, Issue No. 2, Summer 2019
(subscription required)

Nondisparagement provisions, which commit one contracting party to refrain from derogatory comment about another, are familiar features in employee severance agreements and settlement agreements. They also have been commonly included in some employment contracts, typically for top executives earning substantial salaries, to prohibit post-termination recriminations from such highly compensated personnel.

More recently, such provisions also have begun to appear in employment contracts with ordinary new hires, exacting a threshold pledge of no adverse comment both during and after the relationship. The cause appears to be the emergence of social media as outlets for criticism of businesses, which both consumers and employees have exploited to publicize grievances. In response, some manufacturers and service providers have sought to gag purchasers through nondisparagement provisions in certain kinds of consumer contracts, prompting widespread protest and remedial action at both the federal and state level. Despite that reaction, some employers also have tried to adapt the same broad preemptive approach, expanding resort to such provisions in the workplace.

Scaling Down Inequality: Rating Scales, Gender Bias, and the Architecture of Evaluation

Source: Lauren A. Rivera, András Tilcsik, American Sociological Review, Early View, March 12, 2019
(subscription required)

From the abstract:
Quantitative performance ratings are ubiquitous in modern organizations—from businesses to universities—yet there is substantial evidence of bias against women in such ratings. This study examines how gender inequalities in evaluations depend on the design of the tools used to judge merit. Exploiting a quasi-natural experiment at a large North American university, we found that the number of scale points used in faculty teaching evaluations—whether instructors were rated on a scale of 6 versus a scale of 10—significantly affected the size of the gender gap in evaluations in the most male-dominated fields. A survey experiment, which presented all participants with an identical lecture transcript but randomly varied instructor gender and the number of scale points, replicated this finding and suggested that the number of scale points affects the extent to which gender stereotypes of brilliance are expressed in quantitative ratings. These results highlight how seemingly minor technical aspects of performance ratings can have a major effect on the evaluation of men and women. Our findings thus contribute to a growing body of work on organizational practices that reduce workplace inequalities and the sociological literature on how rating systems—rather than being neutral instruments—shape the distribution of rewards in organizations.

#MeToo whistleblowing is upending century-old legal precedent demanding loyalty to the boss

Source: Elizabeth C. Tippett, The Conversation, March 5, 2019

…. While researching a book on the duty of loyalty, I realized that the #MeToo movement isn’t merely a rift in the ordinary order of workplace relationships in the United States. It is part a larger legal and cultural shift that has been in the works for decades.

The duty of loyalty is the idea that you “cannot bite the hand that feeds you and insist on staying for future banquets,” as an American labor arbitrator wrote in 1972.

It’s a bedrock principle that courts apply to employment disputes, even if you didn’t sign a contract promising to keep an employer’s secrets.

The duty of loyalty is why employers can demand that you sign a confidentiality agreement at the start of employment. It’s why workers can’t download their employer’s trade secrets on a thumb drive and use it in their new job. And why companies are able to persuade judges to enforce noncompete agreements. ….

The Feedback Fallacy

Source: Marcus Buckingham, Ashley Goodall, Harvard Business Review, March/April 2019

For years, managers have been encouraged to praise and constructively criticize just about everything their employees do. But there are better ways to help employees thrive and excel. ….

…. To be clear, instruction—telling people what steps to follow or what factual knowledge they’re lacking—can be truly useful: That’s why we have checklists in airplane cockpits and, more recently, in operating rooms. …

….Underpinning the current conviction that feedback is an unalloyed good are three theories that we in the business world commonly accept as truths. The first is that other people are more aware than you are of your weaknesses, and that the best way to help you, therefore, is for them to show you what you cannot see for yourself. ….

…. The second belief is that the process of learning is like filling up an empty vessel: You lack certain abilities you need to acquire, so your colleagues should teach them to you. ….

….. And the third belief is that great performance is universal, analyzable, and describable, and that once defined, it can be transferred from one person to another, regardless of who each individual is. …..

…. But the occasions when the actions or knowledge necessary to minimally perform a job can be objectively defined in advance are rare and becoming rarer. What we mean by “feedback” is very different. Feedback is about telling people what we think of their performance and how they should do it better—whether they’re giving an effective presentation, leading a team, or creating a strategy. And on that, the research is clear: Telling people what we think of their performance doesn’t help them thrive and excel, and telling people how we think they should improve actually hinders learning. ….

…. What these three theories have in common is self-centeredness: They take our own expertise and what we are sure is our colleagues’ inexpertise as givens; they assume that my way is necessarily your way. But as it turns out, in extrapolating from what creates our own performance to what might create performance in others, we overreach. Research reveals that none of these theories is true. The more we depend on them, and the more technology we base on them, the less learning and productivity we will get from others. To understand why and to see the path to a more effective way of improving performance, let’s look more closely at each theory in turn. …..

The ‘Hidden Mechanisms’ That Help Those Born Rich to Excel in Elite Jobs

Source: Joe Pinsker, The Atlantic, February 26, 2019

When two sociologists interviewed highly paid architects, TV producers, actors, and accountants, they encountered work cultures that favor the already affluent. ….

Over the past five years, the sociologists Daniel Laurison and Sam Friedman have uncovered a striking, consistent pattern in data about England’s workforce: Not only are people born into working-class families far less likely than those born wealthy to get an elite job—but they also, on average, earn 16 percent less in the same fields of work.

Laurison and Friedman dug further into the data, but statistical analyses could only get them so far. So they immersed themselves in the cultures of modern workplaces, speaking with workers—around 175 in all—in four prestigious professional settings: a TV-broadcasting company, a multinational accounting firm, an architecture firm, and the world of self-employed actors.

The result of this research is Laurison and Friedman’s new book, The Class Ceiling: Why It Pays to Be Privileged, which shows how the customs of elite workplaces can favor those who grew up wealthier. The authors describe a series of “hidden mechanisms”—such as unwritten codes of office behavior and informal systems of professional advancement—that benefit the already affluent while disadvantaging those with working-class backgrounds. ….

…. Laurison: I think that a lot of people, on some level what they think they’re doing when they sponsor young co-workers is spotting talent—they called it “talent-mapping” in the accounting firm we studied. But a lot of people we talked to were also able to reflect and say, “Part of why I was excited about that person, probably, is because they reminded me of a younger version of myself.” The word we use in sociology is homophily—people like people who are like themselves.

One of the big ideas of the book, for me, is it’s really hard for any given individual in any given situation to fully parse what’s actual talent or intelligence or merit, and what’s, Gosh, that person reminds me of me, or I feel an affinity for them because we can talk about skiing or our trips to the Bahamas. Part of it is also that what your criteria are for a good worker often comes from what you think makes you a good worker.

Pinsker: In the workplaces you studied, who tended to lose out in these systems of sponsorship?

Laurison: In three of the four fields we studied, it was poor and working-class people, and also women and people of color. There are lots of axes along which homophily can cloud senior people’s judgment about who’s meritorious. ….