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Punching In: Workplace Bias Police Look at Hiring Algorithms

Oct. 28, 2019, 10:00 AM

Monday morning musings for workplace watchers

OK, Computers | On the Fence with House Democrats | Unwrapping IRAP

Chris Opfer: Congress and federal lawmakers are not exactly the first folks that come to mind when the discussion turns to cutting edge technology. A few senators still whip out flip phones and pretend like they’re taking a call to avoid the press corps on Capitol Hill. That’s one example of how tech advances are sometimes a little delayed inside the Beltway. It’s easy to get the sense sometimes that by the time legislators and regulators get enough of a grasp on new technology to address its impact, there will already be a fresh batch of bells and whistles promising to change the way we live.

The Equal Employment Opportunity Commission could soon buck that trend. The EEOC is investigating at least two cases involving claims that algorithms used to help make hiring, promotion, and other job decisions unlawfully discriminate against certain groups of workers, sources familiar with the cases tell me. That gives the EEOC the opportunity to weigh in on artificial intelligence that is increasingly being used by human resources shops and drawing concerns about baked-in bias related to race and sex.

“This is all going to have to get worked out because the future of recruiting is AI,” Bradford Newman, a partner in Paul Hastings’ Northern California office who represents businesses, recently told me. Newman said he was not aware of the EEOC cases.

The EEOC news comes as lawyers have been waiting for courts to take up the issue of what to do when a robot allegedly discriminates. Some state legislatures are just starting to dip their toes in the murky legal waters. A new law in Illinois, for example, offers some protections to job seekers faced with video interviews that draw on artificial intelligence to help an employer select candidates. That’s the kind of technology that was recently detailed in a Washington Post story that caught some attention in the labor and employment world.

The Illinois law will require businesses to inform job seekers about video interviews ahead of time and to provide certain information about how they use algorithms in the recruitment and selection process. But it doesn’t spell out the information that employers must turn over and doesn’t give job applicants a private right of action to enforce their rights in court.

The EEOC, on the other hand, has the opportunity to set some standards as to how to apply federal workplace discrimination law to hiring algorithms. That includes how to determine whether a system that is constantly “learning” by being fed new data and information has an adverse impact on protected groups of job seekers.

Jaclyn Diaz: Chris is right when he says Congress and federal lawmakers are slow when it comes to tech advances and how it effects our daily lives. Lately though, it seems the tide is slowly changing and some lawmakers are now talking about the issue with the goal of eventually legislating on the topic.

Earlier this month, the Education and Labor Committee held a round table on the “future of work,” where advocates, attorneys, and other stakeholders discussed the various ways technology has altered the workplace—that included automation and the rise of independent contractors—and what lawmakers should do about it.

The lawmakers who listened in on the event eventually brought the discussion over to the Protecting the Right to Organize Act (H.R. 2474). That’s a natural transition, given the bill’s massive proposed changes to federal labor laws and impact on several future of work-related issues like the classification of workers.

The bill, as of Friday, is up to 216 co-sponsors, including two Republicans. It’s a Democratic Party priority, but not all members are finding it easy to back the proposal. For some, it’s downright politically risky to support the legislation.

Rep. Lucy McBath (D-Ga.), a member of the Education and Labor Committee, was refreshingly honest about the Pro Act pickle she’s in.

McBath was noticeably absent the day the committee marked up the PRO Act Sept. 25, and never voted on the bill. Rep. Haley Stevens (D-Mich.) who was absent for parts of the markup also didn’t vote, but the roll call sheet indicates she would’ve voted for the bill.

Georgia is a right-to-work state, McBath noted, which means unions can’t force workers covered by a collective bargaining agreement who chose not to join the union to pay certain related fees. She said she’s struggling to balance the need to update labor laws and her desire to support businesses.

“The PRO Act is something they do not want,” McBath said, referring to the business community in her district. “But I want to protect workers.”

To dial up the pressure, unions, like the Communications Workers of America, are using the PRO Act as a litmus test for candidates.

“If a sitting Member of Congress or a Senator doesn’t vote for the PRO Act to expand workers’ rights, they won’t receive an endorsement for reelection from CWA in 2020,” CWA President Chris Shelton said in a recent statement in support of the legislation.

Ben Penn: Even with new brass at the Labor Department, the chief policy objective remains the same as in the first few years of the Trump administration: Transform the nation’s apprenticeship system by giving industry more control.

But a development last week that flew somewhat below the radar could now threaten this initiative before it’s even been implemented.

The DOL’s independent Inspector General’s Office said it would begin reviewing the Employment and Training Administration’s registered apprenticeship program for a potential misappropriation of funds.

The OIG didn’t comment on the exact nature of what could’ve triggered this probe, besides writing in the audit notice that it was relying on information provided by Congress. But all signs point toward the department’s Industry-Recognized Apprenticeship Program as the source of this review.

Recall that on three separate congressional hearings over the past year, ex-Labor chief Alex Acosta was asked by Democrats to confirm that he wouldn’t finance IRAPs with the same pot of money Congress appropriated explicitly for the separate registered apprenticeship system. Each time, Acosta assured them that his agency would spend its budget as lawmakers intended.

Since Acosta’s July resignation, someone on the Hill has provided intel to the IG that might refute the former secretary’s narrative. A breach of the Anti-Deficiency Act, which bars agencies from spending in excess of what Congress appropriated, wouldn’t necessarily halt a regulation to establish the IRAP program. The Government Accountability Office would have to conduct its own review and then make a referral to the Justice Department for a possible criminal lawsuit, if a violation occurred, but that’s an unlikely scenario.

It appears that for Democratic lawmakers with concerns about IRAP funds, the real mission here is to halt the IRAP-rulemaking before it’s finalized, or help attorneys mount an Administrative Procedure Act challenge after the rule is completed.

CO: We’re punching out. Daily Labor Report subscribers can check in during the week for updates. In the meantime, feel free to reach out to us: copfer@bloomberglaw.com, jdiaz@bloomberglaw.com, and bpenn@bloomberglaw.com or on Twitter: @ChrisOpfer, @jaclynmdiaz, and @benjaminpenn.

See you back here next Monday.

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To contact the reporters on this story: Chris Opfer in New York at copfer@bloomberglaw.com; Ben Penn in Washington at bpenn@bloomberglaw.com; Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editor responsible for this story: Terence Hyland at thyland@bloomberglaw.com

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