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Job Descriptions, Recruitment and AI

A "now hiring" sign to fit the theme of how companies engage in recruitment.
Photo by Free To Use Sounds on Unsplash

Finding good employees is tough. Unemployment is at a 50 year low (it is around 3.6%) There are around 1 million more job openings vs. potential applicants at this point in time, and the reality is that immigration and finding candidates that can come to the US to work is getting more difficult under the current administration.

So, how can companies find the right candidates? And why is an employment law blog writing about recruitment? Recruitment efforts (when not accurate or strategic) can have negative implications on employees in the workplace, and the use of particular recruitment software strategies can be sticky- so being well-informed of the pitfalls is key.

It Starts with the Job Description

Crafting job descriptions is an incredibly important part of any recruitment process. Why does it matter? There are 3 important reasons. It sets your expectations for recruiting for the position, it sets the essential job duties if an employee is disabled and needs an accommodation under the Americans with Disabilities Act, and it forms the basis of meeting the duties within the white-collar exemptions.

Setting Expectations

An advertisement for an open position will always contain a job description and expected duties of the position. The accuracy of these postings are critical. A poorly worded job description will not attract the right candidates will create a big waste of time and money for the business and may even expose the company to a discrimination claim. In the event a business chooses to hire an applicant who was recruited with an inaccurate job description,  when these candidates join the company, they will likely feel lied to, and  that the job does not match what they applied for. LinkedIn’s Talent blog has a great breakdown of what candidates actually review when they see a job description. According to LinkedIn, candidates believed that the most important parts of the job posting were the compensation, qualifications, and job duties. Clear and specific measures of what success in the position looks like were also very popular with candidates. The best job postings also let the candidate know exactly what they need to do to achieve success in the position.

Job descriptions and Essential Functions under the ADA

 The job description forms the basis of the essential functions of the position, which determine whether someone can be accommodated under the ADA if they have a disability. In many positions, it is critical for the company to have clear job descriptions to defend themselves in the event that a person has a disability and cannot be accommodated. Job descriptions should be formalized and written down. For example, attendance can be a regular requirement of a job

White Collar Exemptions

Finally, the job description can serve as evidence that a person meets one of the salary basis exemptions for overtime. In many instances white collar employees (think Doctor, Lawyer, Manager, etc.) will qualify as exempt from overtime which means even if they work over 40 hours they would not qualify for overtime pay.  A written job description stating the duties of these individuals will be used as evidence to see if the person meets the relevant exemption for the executive, administrative, professional, sales, or other exemption related to overtime pay.

AI and Recruitment

There is no doubt that technology can aid immensely in recruitment. One can consider all of the technological improvements that have made work so much better. The internet allowed job openings to be posted online, online applications allow people to apply at their convenience (without having to mail or hand deliver an application), scheduling software can make setting up an interview a breeze, and applicants can access reviews of the company through Glassdoor, equipping them with information that would have been much more difficult previously unless you knew someone on the inside. 

It is a big task for any company to try to select the right candidates, especially when the pool is large and diverse. Many companies have begun using software to screen out candidates and select the best candidates for the position, however, many of these tactics have their own pitfalls you should be aware of (some of them being blatantly asking for a lawsuit). These methods can include using software to screen resumes, (unlawfully) targeting individuals for applications and advertisements based on characteristics of individuals like zip code and age, and finally conducting interviews through video or using an electronic device, essentially streamlining the interviewing process and lessening the need for in-person manpower.

Screening Resumes with Software

Using software to screen resumes and applications can be efficient. If a job requires a certain certification, degree, or level of experience and a candidate does not have that and a company cannot or does not want to consider applicants without the skill or experience, then a resume screener can automatically reject these applications and perhaps even send out an email letting them know that they were not accepted for the position. It basically prevents a real human from having to review an application. Of course, you do need to be careful about machine learning and letting the app run on its own. Amazon had to adjust some software that used machine learning that it was developing because the software was discriminating against women. The software penalized candidates for having “women” in their resume and penalized candidates from 2 women’s colleges. Companies must be careful to avoid discrimination in the resume screening by any algorithm or AI (Artificial Intelligence)  and continuing to monitor the software to determine if it later causes a disparate impact on any group.

Targeted Advertising

Facebook recently settled several cases involving its targeted advertising that enabled it to exclude certain individuals based on age. Age is a protected characteristic and is protected under the ADEA (The Age Discrimination and Employment Act of 1967). It is illegal to discriminate against someone on the basis of age. The ads targeted young men, so women and people over 55 did not even see the ads, which means that it was also discriminatory on the basis of sex (another protected class). Facebook also had ads that were targeted based on the zip code that individuals were living in which also may be problematic as racial makeup differs from zip code to zip code especially in metropolitan areas, which could also allow companies to discriminate based on race and even national origin.

AI Conducted Interviews

Video interviews have been one of the big developments that have come out in the last few years, but they are already subject to some problems. One of the most interesting and relevant examples of this at the moment is with the company HireVue and their interviewing technology.

HireVue’s AI conducts video-based  interviews which measure “non-verbal cues – such as facial expressions, eye-movements, body movements, details of clothes, and nuances of voice.” It also collects all the responses from the interviewers to allow users to more easily compare answers. 

There are a few issues with this kind of software including the question of if this technology could even reasonably identify things like emotion or personality traits. It could also potentially discriminate against individuals who have a different primary language, or even have individuals “put on a show” for the software based on knowing what the software is looking for.  The Brooking Institution stated that “Scientific evidence suggests that accurately inferring emotions from facial expressions is very difficult and it stands to reason that inferring personality traits is even harder, if it’s possible at all.”

Angela Chen at Technology Review stated the complaints that some groups have had with the software. “As a result, applicants who deviate from the “traditional”—including people don’t speak English as a native language or who are disabled—are likely to get lower scores, experts say. Plus, it encourages applicants to game the system by interviewing in a way that they know HireVue will like.”

However, HireVue claims that it

has a well-developed process that involves testing the input data used to train our algorithms for bias, and then performing what organizational psychologists call “adverse impact” (bias) testing on the output data (predictions) produced by each algorithm. If we find that a certain factor studied by the algorithm is producing a biased result, we take it out of the algorithm, retrain it with all data except that factor, and test it again. This all happens before the assessment can go live in an interview, so you can rest assured that HireVue algorithms are de-biased long before you ever encounter them.

Title VII bans national origin discrimination and as HireVue measures language patterns it may be a problem for the software. The software may suffer problems from creating a disparate impact based on national origin (caused by the candidate’s speech patterns) and may discriminate against individuals with a disability that may have had a stroke or other condition that affects their speech or facial expressions.

As a result of these issues and as noted by Drew Harwell in the Washington Post, the Electronic Privacy Information Center (EPIC) filed a complaint with the Federal Trade Commission stating that HireVue’s use of “unproven” AI systems to scan people’s faces and voices is a threat to workers.  The FTC “regularly enforces ‘unfair and deceptive acts or practices’ statutes against companies found to be making claims to consumers without a ‘reasonable basis’ in a way likely to ‘cause substantial injury.”’ EPIC claims that the results from HireVue are “biased, unproven and not replicable.” Further, they claim that it could be biased against someone because of a protected characteristic.  “HireVue advertises that its technology does not use facial recognition technology” because its systems do not attempt to identify people.”

EPIC argues that this is misleading as the FTC ruled that facial recognition technology includes any ‘“technologies that analyze facial geometry to predict demographic characteristics, expression or emotions.”’ The result of the EPIC case is a case all recruiters should watch, and it will be interesting to see the arguments as it unfolds. Recruiters that use AI can especially benefit from following the case to see whether any changes are necessary to the software that they use to minimize any disparate impact it has only any protected class (like anyone with a disability or those that are not native to the US). The case and similar ones will answer important questions on how this software and others like it can address discrimination concerns, which will have a great, and likely positive, impact on how recruitment is done in the future.

Illinois has also taken a stand on the issue. It recently enacted legislation that requires the company to  disclose that artificial intelligence analysis will be used before the interview, and that the company must “provide each applicant with information before the interview explaining how the artificial intelligence works and what general types of characteristics it uses to evaluate applicants.” Companies must also get consent from the applicant before they use this software.

It will be interesting to see how the use of this technology evolves. There is likely a place for AI in recruitment, however there are still many problems to be worked out.

Conclusion

It’s a tough time for recruitment- with unemployment so low, and immigration work visas more difficult to obtain, finding quality candidates who can fill a job is a difficult task. To compound this issue, the HR Daily Advisor’s 2017 Annual Recruiting Survey found that 58% of respondents had no recruitment strategy. With no clear strategies at hand, and a smaller pool of applicants, getting clear about what you can do to strategically recruit is essential for companies to have the best chance of finding quality candidates in their search. Additionally, being aware of the implications of poorly vs. well written job descriptions, as well as the risks and rewards of certain software supports in recruitment efforts, will make your company better prepared to recruit moving forward. 

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

How to Prevent Sexual Harassment in the Workplace

Woman holding a #Metoo sign to show support with the #Metoo movement's goal to end sexual harassment
Photo by Mihai Surdu on Unsplash

Sexual harassment is not going away. It’s on the news daily. You hear it whispered about in the walls of many offices. At the one-year anniversary of the #MeToo movement 425 prominent people have been accused of sexual misconduct. Most recently, Google employees led  a workplace strike on November 1 to protest a multimillion-dollar settlement offer to a high ranking executive.

Sexual harassment seems so pervasive in society. Movies often portray “funny” or “romantic” scenes (like chasing after a love interest that wants nothing to do with the main character) that in real life would simply be creepy. Ever seen the movie 9 to 5 with Dolly Parton? Yeah… that’s what we are talking about- creepy bosses exploiting their employees. It is hard to turn on the news without hearing about another victim of sexual harassment or a discussion of the #MeToo movement. So, what are some steps that companies and employees can take to combat sexual harassment when it seems to be everywhere?

Have a Policy in Place to Address Appropriate Workplace Behavior.

All companies need workplace rules. When the employee handbook has clear rules for the employees, then they understand what they can and cannot do. You can take a look at Facebook’s policy as an example. The anti-harassment policy should explain that the company does not tolerate discrimination based on any protected characteristic, list the characteristics (sex, race, etc.), and give examples of what would be a violation of the policy (slurs, sexual innuendos, etc.). When the rules are public and well drafted, employees have no excuse for not following them.

Have a Procedure to Report Sexual Harassment and Ensure that there is More than One Person that People can Report to

The policy should have a procedure that people can follow to report incidents of sexual harassment. It should give multiple people that the person can report to (human resources, manger, etc.) and how they can make their reports (in person, email, etc.). People should be made to feel as comfortable as possible when they are making these reports. These are tough subjects to discuss much less bring up when sometimes the person who harassed you is in a position of power.

Train your Staff about Sexual Harassment

Some states require employers to train their staff regarding sexual harassment. California, Connecticut, Delaware, Maine, and New York require some form of sexual harassment training to either all employees and/or supervisors. There are important reasons to train your staff on this issue even if you are not required to do so. It can help reduce your liability by decreasing the likelihood that an incident will occur, which is especially important if you work in an industry where sexual banter or other misbehavior is more likely to occur (like restaurants). When you talk about sexual harassment at work you are making it known that the company will not tolerate this kind of behavior. People will be more likely to speak up.

Train your Managers

Companies need to train managers separate from their staff. The training is not the same for managers as it is for staff. Not everyone that is subject to inappropriate workplace behavior will speak up. Managers must be appropriately trained to recognize harassment, how to respond to it, and the procedures that must be followed. They are a company’s frontline of defense against sexual harassment claims.

Ensure that Upper Management Does Not Tolerate Sexual Harassment

Upper management sets the tone for the rest of the company. For example, Under Armour’s practice of allowing employees to charge strip club visits and other adult entertainment to the company was a bad policy. It is incredible that this ended just this year. If employees are allowed to do this, and if the CEO’s and other C-suite officers are allowed to expense this sort of “entertainment”, then the company’s management is not leading by example (and is likely exposing itself to sexual harassment lawsuits).

Upper management should care about sexual harassment because the average cost of a sexual harassment lawsuit runs from $75,000-$125,000, but can often result in multimillion dollar losses for a company.

Beware of Instances Where Sexual Harassment is More Likely to Occur

If the company has a party where alcohol is present, then a problem is more likely to arise. Some workplace studies have shown a link between drinking and harassment. If you are going to have an office party, then you need to ensure that you provide drink limits to the people that will be there (2 drinks per person is a good limit).

Speak Up

I’m not addressing this to the victims of sexual harassment. There are a number of reasons why they do not always report an incident. Those that do report sexual harassment or inappropriate behavior deserve to be applauded.

I’m talking about the other people. The people that witness something, but do not say anything. The people that hear about an incident, but don’t do anything about it.  Everyone is responsible for creating a positive and safe workplace where people want to work. It is people (like this) that do the right thing by taking action to make their workplace a better place that deserve to be held up as an example. Bystanders can help stop sexual harassment. They can run interference, get a manager, intervene and do a number of different things to prevent sexual harassment. We all need to do our part.

Conclusion

Sexual harassment can be severely reduced, but it will take everyone working together. If there is one thing that is evident from the past year and the #MeToo movement, it is that a lot of people have been hurt by people that they worked with.  Hopefully, we can work together to end sexual harassment.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Brett Holubeck (of Houston, Texas) is the attorney responsible for this site.