The Coronavirus changed a lot of things for companies all over the world, but some companies used this time of change to better their business and prepare for a new future. Our client was one of those companies. Below is a brief overview of how we worked with them to deliver a smooth rollout of our product to their entire workforce faster than ever before. Now that we’ve accomplished this with them, we’re excited to use our new process as a competitive advantage for more of our new clients.
Challenge
Deliver an implementation that was previously planned for 9 months in under 2 weeks for over 7,000 employees and 4,000 locations during the COVID-19 lockdowns
Solution
Unify and standardize employee data from multiple legacy payroll systems and other sources into one database
Have all 7,000+ employees use a mobile app to clock in and out of their shifts instead a communal physical device that all employees would have to touch
Work with internal stakeholders to create a personalized virtual interactive training program that includes a custom sandbox of the system simulating the managers’ real life working conditions
Create a more efficient process for gaining consent from employees who use the technology to stay compliant in different US states and Canadian provinces
Guarantee their next payroll cycle delivers without errors by providing an additional layer of customer service during that payroll process
Results
Almost 600 managers logged into the system in the first week
Over 2,500 employees downloaded and installed the app after the first round of roll out
Workforce.com was the first technology solution adopted by the whole enterprise globally
If you’re interested in taking a look inside the workforce.com workforce management platform you can sign up for a free trial here.
Payroll can be a complicated and time consuming process. If employers fail to be compliant — intentionally or not — they may face potentially debilitating business consequences.
Workforce management professionals can use technology solutions to address complicated payroll challenges.
Challenge: Maintaining tax compliance
Tax compliance challenges come in many flavors. The Federal Unemployment Tax Act poses potential complications for employers, and employers must be careful to compute their FUTA tax liability correctly.
Further, certain flexible work arrangements may introduce tax complexities to employers who must figure out how, when and where to withhold state taxes for their employees. Remote work is mostly a positive trend. Employees are generally more productive working outside the office, and employers can consider a larger pool of candidates for a job. But the company must make sure they have an effective system that takes state and local tax laws into account, especially if it manages a geographically scattered workforce.
The right payroll system will help employers do this by allowing them to input all relevant tax laws in the system. Then managers don’t need to worry that the laws aren’t being addressed in their payroll, and they can continue benefiting from a flexible, remote workforce.
Challenge: Balancing federal, state and local compliance laws
An “overwhelming alphabet soup of laws, regulations and agencies” govern the workplace — and not just regarding tax compliance. Federal agencies like the EEOC and OSHA and regulations like FMLA and COBRA affect workplace decisions on everything from payroll to health care to time off and beyond.
Managers may have a lot on their plate in addition to payroll, like creating effective schedules, controlling wage costs and taking overtime in account. While they deal with everything on their plate, they also have many legal responsibilities to balance.
Labor management software can take on the most difficult part of this process, knowing how to apply different laws and regulations to every payroll decision. This leaves time and mental energy for workforce management professionals to focus on other parts of their job, rather than getting bogged down by compliance concerns.
Benefits of payroll software
Payroll is a baseline, necessary duty of many managers’ jobs. Still, they have many other responsibilities that occupy their time and attention. Technology allows them to automate what is taking up too much of their time and energy and increasing efficiency at the organization.
Try Workforce.com software for your payroll and scheduling needs, which has saved managers: several hours a week by automating time consuming tasks like payroll.
The usual employee communication strategy goes out the door when a company faces a crisis. Special circumstances like natural disasters, workplace shootings and pandemics put employers in a challenging situation. The future is uncertain, people are constantly learning new facts and messaging has to be carefully crafted.
Meanwhile, emotions may be high while people deal with the aftermath of a potentially traumatic event, and employers must be able to communicate messages carefully and empathetically. Added to this challenge, distance may be an issue. Disease outbreaks, hurricanes and snowstorms may leave a workforce separated from each other, either working remotely or unable to work at all.
It’s important for organizations to develop a crisis communication plan. Within that plan include details that relate to specific crises. Technology will be a key part of these strategies, especially when there’s a possibility that employees and managers won’t be in the same office for an unknown amount of time.
Here are some tips on how to utilize technology in a crisis communication strategy.
Communicate the organization’s response:
Whatever the crisis, employees want to know what is going on with their jobs and updates on the company. If a company closes temporarily due to a disaster, for example, people want to know when it will open again. Are their jobs safe? Is the employer taking proper health and safety precautions as they reopen the workspace? Are employees’ concerns and questions being addressed or ignored?
While managers may not have all the facts, they can set up weekly calls or send ongoing communication that gives employees whatever information is available. That way, people don’t feel out of the loop and know that their concerns are being considered and addressed by management.
A mobile communication solution is especially valuable since employees can access the information they want whenever and wherever on their own device.
Share only trustworthy sources and facts:
In times of crisis, misinformation and myths can be spread just as easily as facts, as crises like the COVID-19 pandemic and mass shootings show. Coronavirus myths include that antibiotics kill the virus and that only older people and people with chronic conditions are at risk. Mass shootings myths include that people with a mental illness are more likely to commit acts of violence (they’re actually much more likely to be victims of violence).
The important lesson for employers here is that rather than relying on the opinions of random people online — even if they seem credible — they should rely on basic facts from the experts.
As managers regularly communicate with employees as part of their crisis management strategy, they shouldn’t further spread misinformation.
Show empathy:
Just sharing facts won’t show empathy for the anxiety, trauma or other negative emotions employees may feel during a crisis. Compassion and a sense of understanding can go a long way to easing employees’ fears.
This is also an area managers can practice. They don’t have to go in blindly when they want to show a human, vulnerable, empathetic side to employees. Practice could be role-playing with someone else and analyzing what responses worked. Or it could mean researching how to communicate with people who have been through a crisis and practicing how to say it genuinely to another person.
In the case where managers and employees are separated, managers can show their team members on a personal level as well via their company’s mobile chat tool. It could be as simple as asking someone how they’re doing or communicating to them that management cares about their well-being. Just be sure it is genuine.
Don’t ghost employees:
Even though employers have enough on their plate when dealing with the aftermath of a crisis, they shouldn’t neglect their employees , who often are hailed as an organization’s “most valuable asset.” Ignoring the impact of the crisis on these people won’t reflect well on the manager or the organization.
It can be easy to keep in touch with employees and keep the lines of communication open with the right tech tools. Workforce.com allows managers to communicate with employees, whether it’s to share important information with them or just to reach out and show empathy for their situation.
Tools like this exist and can make managers’ crisis management responsibilities more effortless and streamlined. Utilize the latest communication technology in your crisis communication strategy.
The COVID-19 pandemic has catapulted workforces around the world into remote work or a different environment than what employees are used to.
Businesses are making adjustments to their operations in adherence to social distancing and in joining the fight to curb the pandemic.
As the search for a vaccine continues, it seems like flexible work will be here to stay. But what does that mean to the workforce? And what must managers do to help navigate the new normal involving remote work?
Same principles, different times
Jacob Morgan, an author, speaker and authority on leadership, employee engagement and the future of work, said in a recent blog post that more companies will embrace flexible working arrangements.
“With the current pandemic, millions of people around the world are working from home,” he said. “This will likely continue over the coming months but even after the pandemic is over, I expect we will see a dramatic rise in flexible work arrangements. However, in order for these efforts to be successful organizations need to use a new set of digital technologies and embrace a new way of working.”
“Before rushing to pick that shiny new collaboration and communication platform, focus on developing a strategy which will help you understand the ‘why’ before the ‘how.’ This is crucial for the success of any collaboration initiative,” he wrote. “You don’t want to be in a position where you have deployed a technology without understanding why. Especially during this pandemic, make it clear what the desired goals are so everyone is on board.”
Aside from implementing suitable solutions, Morgan also highlighted the importance of collaboration, measuring the right metrics, leading by example and listening to the voice of the organization, among others. Morgan explained the challenges in applying them and practical ways to overcome them.
“Collaboration should never be seen as an additional task or requirement for employees,” Morgan wrote. “Instead collaboration should fit naturally into their flow of work. For example, with my virtual team of ten employees turning on Skype every morning and looking at what’s going in Asana is how we all start our day, it’s not an afterthought or something additional we do … it’s how we get things done.”
He reiterated that collaboration is an ongoing initiative and goes beyond simply rolling out initial guidelines, thinking that it will stand the test of time. It’s all about adjusting and being agile to changes.
“It’s important to remember that collaboration is perpetual,” Morgan wrote. “It’s a never ending evolution as new tools and strategies for the workplace continue to emerge. This means that it’s important for your organization to be able to adapt and evolve as things change. Keep a pulse on what’s going on in the industry and inside of your organization. This will allow you to innovate and anticipate. So many organizations were caught off guard by this pandemic because they had neither the tools, the training, the leadership, or the guidelines to help make flexible work successful.”
Clear course of action is vital
The pandemic has disrupted global workforces. Management consultancy Gallup has seen massive changes in different aspects of work and employee life, and they are seeing record levels of stress and worry among the U.S. workforce. So how are employers faring in terms of their response?
Leaders need to have a clear course of action and communicate it clearly to their employees. A survey from Gallup shows that 52 percent of employees strongly agree that their employer fared well in terms of sharing information to them about the next steps.
Technology is key to implementing action plans
Having a strategy is just half of the battle. The other half is implementing it. Technology plays a crucial role in that.
A workforce management platform is helpful in this regard as it can help you operate efficiently beyond borders, staying on top of your operations, and improving overall communication with staff. It can help you automate and customize certain processes and adjust quickly to market changes.
There’s a lot of factors at play when managing a workforce, especially so at a time like this. It’s vital to have the right solutions in place that will help you focus on enriching your people and equipping them to do their best even in this era of remote work and beyond.
When letting employees know their value to the organization, it’s important to show appreciation for their daily tasks through effective co-worker comments.
Technology provides exceptional opportunities to motivate your staff and engage their participation by providing ongoing feedback and building a two-way relationship. Selecting the right workplace app develops a continuous dialogue that improves your internal communications and builds a consistent, trusted relationship with employees.
Choosing the internal communications app that best suits your organization has far-ranging implications. Among the most effective forms of communication that your workplace app can provide is employee feedback.
The value of ongoing feedback
People thrive on feedback. Consider how often people are asked to “rate” an experience — the latest vacation spot, the quality of your pet’s food or a call center employee’s friendliness.
Naturally, employees are encouraged to rate their job experience, as well as their workload and the quality of management. In fact, feedback is not only appreciated, it is expected. Employees want to know where they stand with their employers.
An effective workplace app can make that communication faster and more focused. It could literally take seconds to offer a personal congratulations or post a companywide notice of the employee’s accomplishment.
Feedback can come in the form of an employee performance review, a note of encouragement or a thank-you for a job well done. Many people would be surprised at how well a supportive, positive message is received.
Peer-to-peer feedback
Constant colleague feedback also encourages your staff to communicate with one another and enables growth in the company. Employees can use communication-based apps, for example, to swap shifts. This process encourages staff to remain open with one another and enhances growth in the company as well.
Employees can use this online feedback to build an authentic, trusting relationship with each other, as well as with supervisors. Peer-to-peer communication coupled with supervisor appraisals goes a long way in helping them become better in areas they need to improve and showing genuine appreciation in the areas that they have excelled in.
Organizing feedback
Your app simplifies feedback by providing a centralized clearinghouse for all employees on a single platform. Employees can communicate one-on-one or in team settings. They also can organize schedules and are crucial to building a feedback-seeking culture.
Feedback is clearly a valuable business proposition. According to a Gallup study, managers who received feedback on their strengths had turnover rates that were 14.9 percent lower than for those who received no feedback. Still, some employees are hesitant to provide feedback in person. And that applies to managers and supervisors as well.
An internal app makes feedback easier and eliminates barriers with simple, easy-to-use communications. An app also provides the ability to give feedback for those who prefer to avoid face to face meetings.
Using a communications app is redefining the way we think of employee engagement. Unleashing such tools in your workplace are changing the way businesses operate and make feedback immediate and continuous.
Give employees the power to communicate! Workforce.com’s employee engagement module empowers employees to respond immediately and effectively to topics relevant to your business any time of the day or night.
Workforce management professionals face more responsibilities than ever before, and workforce management software can help them manage their many responsibilities.
While workforce management used to be a more focused term — mostly encompassing payroll, timesheets and scheduling — now it encompasses a broader array of duties including recruiting, onboarding, training, technology and more. Some of these duties are owned by HR, while IT, finance or operations take care of others. Balancing this variety of duties is not simple.
Between 2020 and 2025, the workforce management software market is expected to grow at a compound annual growth rate of 4.21 percent, according to India-based market research organization Mordor Intelligence. The report also found that the global workforce management software market was valued at $2.7 billion in 2019 and is expected to reach a value of $3.5 billion by 2025.
Why use workforce management software?
Organizations are interested in using HR and workforce management software for multiple purposes, and many organizations plan to use certain types of software in their long-term plan, according to the 2019 “HR State of the Industry” report from the Human Capital Media Research and Advisory Group, the research arm of Workforce.com. While 37 percent of the organizations surveyed already use a management software system that addresses all core areas of talent management, 10 percent plan to purchase it in the next year and 8.4 percent plan to in the next three years.
The same trend exists for organizations interested in software that specializes in one talent management category. According to the report, 46.4 percent of employers already used recruiting technology software, 9.2 percent planned to in the next year and 6.5 percent in the next three years. With scheduling/time and attendance software, 59.9 percent of respondents already used it, and 9.3 percent and 5.8 percent plan to in the next year and three years, respectively.
Among this huge workforce management software landscape, organizations may have challenges choosing a provider and managing the software. Vendors are releasing new versions of workforce management software every other day while similar companies are also emerging, noted MarketWatch.
One important functionality of a workforce management software solution is the capability to create schedules based on varying rules and regulations. For example, numerous cities and states have passed legislation including laws guaranteeing workers the right to request scheduling accommodations and predictable scheduling laws. Meanwhile, an organization may have specific internal rules that apply to just one team of employees, or they may have global employees who don’t fall under American law.
The benefits of workforce management software
Workforce.com software, for example, addresses this by allowing users to input a rule or regulation and have it automatically added to the system. This isn’t the case with every time and attendance software, but capabilities like this allow workforce management professionals to create good schedules despite the many rules that impact how they can and can’t schedule employees.
The benefits of workforce management software solutions are clear. They can save organizations time and automate complicated processes. Still, some organizations haven’t made the leap yet, citing reasons like lacking the time, budget or resources to choose products, assess vendors and deploy new applications.Experts advise companies in this predicament to start small with core software solutions that address payroll, time and attendance, paid time off and benefits. Delaying workforce management software investments will hinder a manager’s ability to automate the necessary tasks and focus on the parts of their job that can’t be automated.
Just as employees are expected to grow with the times and learn technology skills like data science and programming that make them more attractive to employers and relevant to the jobs of the future, HR managers must do the same.
Technology is gaining a larger role in many traditional HR duties, from recruiting to scheduling to performance management. This has been happening for a while and means that HR managers must be prepared to learn new systems and skills related to the software an organization uses. Relying on current skills is not going to get an HR manager far. They must be willing to be flexible, show curiosity and learn new skills.
However, if an HR manager is tech-savvy enough to manage various HR technology systems, ultimately they will have more time to focus on the HR duties that require timeless skills like tact and empathy.
Programs enabled with artificial intelligence, for example, can help answer common employee and candidate questions, leaving HR professionals time to focus on other responsibilities rather than repeatedly answer the same common, basic questions. Chatbots can’t answer more complex questions, but they can alert a person to answer those queries.
In the recruiting context, technology can help HR managers quickly review resumes. This has both advantages and risks. On one hand, employers don’t spend as much time going over resumes. On the other hand, recruiting technology may make biased decisions if it has been programmed with biased training data. Still, with appropriate training data, this has potential to make the recruiting process better.
And with scheduling, workforce management software can help HR managers create schedules, even considering compliance laws that make scheduling complicated. Different states and localities have varied regulations regarding paid time off, sick leave and overtime. But the appropriate software can take regulations into account as someone creates a schedule for its workforce.
Meanwhile, some HR tasks should always retain the human touch. Managers should always terminate employees face to-face, avoiding doing so via text message, email or other forms of virtual communication. Managers also have key communications responsibilities — for those times as common as the annual open enrollment and as unique as a crisis or global pandemic. Being able to effectively, strategically and sympathetically communicate information is part of the HR job description that does not change with the advance of HR technology solutions.
Consults legal counsel to ensure that policies comply with federal and state law.
Develops and maintains a human resources system that meets top management information needs.
Oversees the analysis, maintenance and communication of records required by law or local governing bodies, or other departments in the organization.
Advises management in appropriate resolution of employee relations issues.
Other responsibilities can likely be streamlined through technology:
Recruits, interviews, tests and selects employees to fill vacant positions.
Responds to inquiries regarding policies, procedures and programs.
Administers benefits programs such as life, health and dental insurance, pension plans, vacation, sick leave, leave of absence and employee assistance.
Prepares budget of human resources operations.
Responds to inquiries regarding policies, procedures, and programs.
Additionally, the rise of technology solutions adds extra responsibilities to that list, like understanding how to use several types of tech tools. These include:
Knowing how to use social media to post jobs, research candidates and communicate with employees.
Knowing how to use an applicant tracking system.
Using talent management software and learning management systems can help you streamline hiring, onboarding, training and retention processes.
Using time and attendance software to quickly and efficiently create compliant, fair schedules.
While HR practitioners are expected to do more than ever before, they have more technology and tools available to make their jobs more efficient in many ways.
The coronavirus outbreak has prompted enterprising businesses to use their existing workforce management technology in new ways.
The unprecedented impact on people’s daily work and personal habits has been the catalyst for the businesses we work with to find new functions for our technology.
Innovative organizations are using the platform to help communicate with their employees about safety measures, shift changes and team morale during this difficult time.
The following are issues that businesses should be prepared for over the coming days, weeks and months and how workforce management technology can assist.
Health and safety issues are top of mind. Employers can use workforce management software to enter and monitor safety processes such as their staff’s COVID-19 test results and to monitor the staff’s self-isolation dates so they know when it is safe to allow them to return to the workplace.
This is an innovative use of a function that was originally created to ensure workforce compliance with industry regulations, certifications and visa working restrictions.
Leave management is another important issue. As a large number of people are required to self-isolate, businesses will see a dramatic increase in requests for all types of leave. They will need systems in place to handle this influx of applications.
Workforce management technology allows for easier approval of shifts and timesheets, along with the power to add and edit staff leave and add manual allowances.
Shift equity is something many employers will want to focus on. A platform can be used to equitably share shifts among staff as a fairer alternative to dropping staff members off the schedule.
Facing unprecedented economic conditions, businesses will be keeping a close eye on profitability. Workforce.com has introduced a live wage tracker that allows employers to make early cost-saving decisions based on reduced demand.
Our live wage tracker provides an update on wage costs every 15 minutes. If this data is connected to point-of-sale technology, businesses can track exactly how they are performing throughout the day and use the data to make staffing decisions. Especially when government directives are being made frequently, it’s vital that businesses are able to make rapid cost-saving decisions based on demand.
Employees working from home can still clock in via Workforce.com’s remote clock in, which allows staff to clock in via their mobile devices, to clock in and out multiple times to account for the distractions of working from home, and to list their activities performed.
This pandemic will speed up the adoption of remote work technology and employers are on notice that the workplace may be permanently impacted.
Once the virus is contained and it is business as usual, employees may be asking, “Why do I have to come into the office every day, I’m just as efficient from home?”
Can your business keep up if people want to continue to work from home? Some businesses are using this time of reduced demand to ensure they have the right processes in place for a flexible workforce.
Maintaining team unity is more important than ever. A chat function is a good way to check in on staff morale, set up reminders about sanitizing frequently touched surfaces, and even report on interactions with potentially unwell customers so that good records are kept.
Employers also can easily communicate changes to the business by messaging individuals or entire teams, sharing key updates and important documents like training files, new health and safety policies, and opening hours.
Because chat messages are easy for all team members to see in the app, employers and managers can also use this platform for important things like saying happy birthday to a team member or reminding them to clock out if they’ve forgotten to do so.
The COVID-19 pandemic has forced upon employers and employees a new way of operating, at the very least in the short term. But technology that already exists can help businesses keep on top of the new normal of managing a workforce.
As recruiters adopt advanced technologies in their quest to identify, court and hire candidates, attorneys are looking into the legal and regulatory issues those new tools may bring into play.
Lawyers, recruiting experts and technology vendors say legal teams are examining compliance concerns even as their colleagues in HR and IT evaluate products that leverage artificial intelligence, machine learning and other innovative approaches. Not only are they exploring the ramifications of privacy requirements such as Europe’s GDPR, they’re considering the possible impact of biases that may be inherent in a data set or unwittingly applied by algorithms.
“I think we’re at the beginning of sorting out what all this means, but I think it’s definitely something people are thinking about,” said Jeffrey Bosley, San Francisco-based partner in the labor and employment practice of law firm Davis Wright Tremaine. “It’s a new technology and it’s evolving. Whenever you have a new technology, you do have growing pains and you do have these issues that come up,” he said.
Advanced technologies have gotten much attention recently, particularly as people inside and outside the business world consider the impact AI may have on jobs and livelihoods. At the same time, some well-intentioned efforts have generated media coverage for results that were diametrically opposed to what their developers set out to do.
In 2018, for example, Amazon abandoned an effort to build a machine-learning tool for recruiters after the system proved to be favoring men over women. According to Reuters, the tool downgraded resumes that included the word “women’s” as well as the graduates of two all-women’s colleges.
Sources inside Amazon said the system, which had been under development since 2014, was meant to review resumes so recruiters could spend more time building candidate relationships and actually hiring people. It worked by comparing applicants against patterns found among resumes the company had received over a 10-year period. However, it didn’t account for the dominance of men in the technology workforce. As a result, the system machine-taught itself that male candidates were stronger than females.
Advanced technology “is at an awkward stage where it’s not really intelligent,” said William Tincup, president of the industry website RecruitingDaily.com. While he sees great potential for AI and other tools to streamline the work of recruiters and even address bias in the hiring process, he believes systems are limited in how much they can accomplish.
Why? In a word, people. “What are machines learning from their learning from humans?” Tincup asked. Hiring managers can’t help but operate with a number of possible preconceptions in their minds, from unconscious bias about race or gender to a preference for the candidate they most recently interviewed or who seems the most like themselves. Such biases, Tincup observed, live on in the makeup of a company’s existing workforce. And that leads to the troubles Amazon faced, where the data set reflects decisions made in the past more than it positions a process to understand needs of the future.
Technology Races Ahead
The situation is complicated by the idea that technology has outpaced legal and business practices. While they believe that will eventually change, analysts and technology vendors don’t see it changing quickly.
“Right now, technology’s moving super-fast,” said Ankit Somani, co-founder of the talent acquisition and management platform AllyO, headquartered in Palo Alto, California. “Generally, regulators and the folks who control compliance standards don’t move so quickly. But, honestly, we’re like three lawsuits away from somebody taking it very seriously.”
“Therein lies a real big rub,” Tincup said of regulation’s lag behind talent acquisition and HR practices. Nearly all of the processes involved with turning candidates into employees touch some kind of employment law or EEOC-related issues, but “all of those rules are outdated,” he said. “We’ve been working outside of the rules for 15 or 20 years. I would argue that there isn’t a company in the United States that’s 100 percent compliant from sourcing to outplacement.”
Talent acquisition teams, and HR in general, understand that and are beginning to adopt, said Brian Delle Donne, president of Talent Tech Labs, an industry analyst and consulting firm based in New York. However, he believes determining exactly how and where compliance fits in with the use of new technologies has been complicated by the way “artificial intelligence” has been “grossly generalized” in industry conversations.
“Most of the time they’re talking about machine learning, or sometimes just automated workflow processing,” Delle Donne said. “When you get into true artificial intelligence, where the machine is making decisions, it’s a higher threshold that’s required for our concern about the accuracy of [its] recommendations and predictions.” The distinction between true AI and what might be called “advanced technology” is important, he believes, because people assume that the machine is prescient when it’s usually not. “In most cases, it will be quite a while until machines are actually making decisions on their own,” Delle Donne observed.
Even in today’s state, the use of advanced technology has become widespread enough to raise concerns about whether it might, inadvertently, nudge an employer out of compliance. For example, AI-driven tools may use personal information in unplanned ways that a candidate hasn’t given permission for. That would raise privacy concerns. Or, tools might present results that, intentionally or not, run afoul of fair-employment legislation. “On both fronts, you’re talking about compliance statutory norms,” said Delle Donne.
AI’s Behavior
Such concerns, along with widespread speculation about AI’s impact, has made advanced technology “front of mind for many people,” said Bosley. In response, governments at all levels have begun generating “a patchwork” of laws that sometimes conflict with one another.
For example, Illinois’s Artificial Intelligence Video Interview Act went into effect Jan. 1, 2020. The law sets out transparency and consent requirements for video interviews, as well as limits on who can view the interviews and how long they can be stored. However, Bosley said, the law’s mandate to destroy videos within 30 days may conflict with the preservation requirements of other state and federal laws, including in the Civil Rights Act of 1964 and the Americans with Disabilities Act.
“It puts employers in a position where they’re really going to need to assess risk,” Bosley said. “They’re going to need to come up with creative solutions to try and work around some of this risk.”
Not all employers may feel exposed in the near term, Tincup suggested. He estimates that each year only a handful of legal actions are taken because of a candidate’s unhappiness with the recruiting process. People practices, technology practices and civil and social discourse are “way ahead of employment law,” he explained. “So is this something that’s going to create an immense amount of risk? No.” Employers today, he believes, put themselves at more risk by hiring a salesperson with a history of sexual harassment. In that regard, “you could spend more money in risk mitigation … than in recruitment technology,” he said.
At the same time, an organization’s risk may be based on activities that aren’t related to recruiting or the workforce, Bosley points out. “This isn’t just a human resources issue anymore. It’s not only an employment law issue anymore. It’s much broader than that,” he said. “You have data protection, data compliance, privacy and the potential for disparate impact claims as opposed to disparate treatment claims.”
Bosley anticipates more claims will be filed that look into a database’s contents, what data’s being looked at, how it’s being processed and whether algorithms are static or refined over time. Essentially, these claims will examine how advanced technology is making its decisions. “It’s going to be something where human resources leaders are looking to involve others in the organization and make sure that they’re both issue-spotting and getting ahead of some of these compliance issues,” he said.
Indeed, Somani believes this notion of “explainability” — laying out what a system does and how it’s doing it — will become more important in the realms of recruiting technology and compliance. “There should, in my mind, be more compliance standards around that,” he said.
Evolving Standards
Even at a basic level, compliance standards for using technology in recruiting “don’t exist,” Somani said. For example, does texting about a job opportunity constitute a form of marketing? Is such a text permissible if it’s personalized? Because the answer’s not clear, he believes many companies are putting stricter guidelines in place.
Somani also said legal departments are becoming more involved in the purchase and implementation of recruiting technology. For tools handling communications, such as those that facilitate SMS messaging between recruiters and candidates, they’re trying to anticipate issues by creating policies that cover not only privacy, but data collection and permissions. “It’s an explicit ask in almost every deal we go into: ‘If a consumer doesn’t want to interact with your system, how do you follow that?’ ” he said. When it comes to issues related to AI’s under-the-hood work, vendors focus on transparency and disclosure by presenting disclaimers on their product or within their privacy policies.
For enterprises, compliance issues “can be a deal-breaker,” said Megan Gimbar, the Holmdel, New Jersey-based product marketing manager for iCIMS Hiring Suite, at least at the corporate level. While compliance and consistency are important components of her product, she said, talent acquisition teams often shy away from the topic.
In the past, employers tried to ensure compliance through training. Their approach, said Delle Donne, was to make hiring managers aware of interview questions that shouldn’t be asked (such as inquiring whether a woman intended to have children) or information that shouldn’t be considered (the candidate’s age or ZIP code). “That’s a fairly low bar,” he observed.
The bar began getting higher “once we started saying algorithms are going to make that determination for us,” Delle Donne continued. “Algorithms might actually do a better job, [or] may actually be set up in a way that they might do a better job, than humans do at avoiding compliance issues through bias.” However, he said, that requires planning and a focus on non-discrimination features when algorithms are designed.
The compliance issues raised by using AI in recruiting aren’t limited to talent acquisition alone. For one thing, Somandi notes, recruiters today leverage a variety of tools that were introduced into other functions.
Think of how candidate management systems and customer management systems align. When using those technologies, compliance may involve adapting the standards used by marketing or sales so they can be applied to talent acquisition and HR.
That road goes both ways. Even solutions designed for recruiters raise issues that aren’t unique to hiring, Delle Donne said. “As HR tries to digitize, there are many, many places where technology can streamline processes and save time and perhaps be more beneficial to the employee or the party,” he said. Many, if not all, of those will lead to some kind of compliance question. For example, a bot used in benefits administration may build a profile of confidential medical information. Or, a learning program might enter performance scores into an employee record without informing the employee. That could be a problem if those scores impact a person’s future promotions or career path.
As it digitizes, the tools implemented by HR “will bring in these technologies and there’s going to have to be some focus or some attention given to not inadvertently creating bias or discrimination, or revealing private information,” Delle Donne said. “If you take a step back, it just could be like whack-a-mole. I mean, ‘Hey, we see it over here in talent acquisition. Let’s go chase that down and… Oh, wait. We just saw this going on over there.’”
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The CDC recommends that employees who can work from home do so, and state stay-at-home orders are requiring telework whenever possible.
The larger questions, however, are whether COVID-19 will change our national outlook on the viability of telework, or when this crisis ends will businesses return to their pre-coronavirus telework hostility?
I hope it’s the former but I fear it’s the latter. And if it’s the latter, Tchankpa v. Ascena Retail Group, which the 6th Circuit Court decided in the midst of the growing coronavirus outbreak and just five days before the World Health Organization declared a viral pandemic, gives us some insight into the future issues.
Kassi Tchankpa, a database administrator for Ascena, seriously injured his shoulder while transporting laptops to work. The injury limited his ability to bathe himself, cook, wash dishes, open the refrigerator or drive normally. Yet, with a variety of accommodations from Ascena (such as arriving late or leaving early as needed to attend medical appointments and flexible scheduling), Tchankpa was able to work in the office for the first 10 months after his injury.
When he asked to work at his home three days per week as further accommodation (something he argued Ascena allowed other employees to do), the company balked. Tchankpa’s supervisor made clear that Tchankpa needed medical documentation to support his request for regular work from home.
Tchankpa’s doctor, however, never provided that documentation, and instead advised the company that Tchankpa could continue to work from the office as long as he took frequent breaks for his shoulder. Ascena thus denied the work-from-home accommodation request. As a result, Tchankpa quit and sued for disability discrimination.
The lack of documentation supporting Tchankpa’s telework accommodation request doomed his claim:
Employers are entitled to medical documentation confirming the employee’s disability and need for accommodation. And Ascena invoked that right in early 2013. Yet Ascena did not receive documents discussing Tchankpa’s medical restrictions until October 2013. Far from showing a necessary accommodation, Dr. Stacy’s report stated that Tchankpa could work eight hours per day, five days per week. Without medical documentation showing that Tchankpa’s disability required work from home, Ascena had no duty to grant Tchankpa’s request. After all, we presume on-site attendance is an essential job requirement.
Thus, an employee seeking telework as a reasonable accommodation must provide a requesting employer documentation as to the medical necessity of that accommodation. This is true of any reasonable accommodation. Unless the need for a reasonable accommodation is painfully obvious, an employer never has to take an employee’s word for it, and should always request medical documentation to support that need.
Which has nothing whatsoever to do with telework during this pandemic emergency. Everyone who can be teleworking should be teleworking, period, no questions asked.
The bigger question is what happens after we all return to our physical places of work. Currently, about half of employed adults are working from home. According to the Bureau of Labor Statistics, before coronavirus only 19.5 percent of the workforce performed some paid work at home. We should expect the numbers to meet somewhere in the middle after we are all allowed to safely return to work. Indeed, the Brookings Institute predicts that telecommuting will continue long after the pandemic ends.
While working from home hasn’t been perfect over the past month, it’s still been work. With email, remote access, cloud storage and Zoom, I’ve been able (more or less) to accomplish everything I’ve needed to. Still, I miss my co-workers and can’t envision doing this from-home thing on a permanent, full-time basis. But I can envision it a day or two a week.
So here are my questions on the heels of the Tchankpa court’s declaration that “on-site attendance is an essential job requirement.” Is it still? If employees are currently working productively from home, will an employer still be able to make a future claim that on-site attendance is essential to those employees’ jobs? Or will remote work finally take its rightful place alongside in-person work as accepted and acceptable?
While telecommuting has been the exception by a vast number, my hope is that the wall that has separated exception from rule will evaporate, as this pandemic has shown that we can productively work without being at work.
“I think we’re at the beginning of sorting out what all this means, but I think it’s definitely something people are thinking about,” said Jeffrey Bosley, San Francisco-based partner in the labor and employment practice of law firm Davis Wright Tremaine. “It’s a new technology and it’s evolving. Whenever you have a new technology, you do have 
