The FTC’s new report Big Data: A Tool for Inclusion or Exclusion? [pdf.] is an important read from an increasingly powerful regulator in this area. Its important to employers is in two areas: use of big data in EEO contexts and use of big data and, I would argue, as the basis of workplace policies concerning the use of big data. Both bear more discussion in detail.
I am only being partly facetious by saying employers need a Chief Employment Law and Technology Officer. The fact is, though, employment lawyers must become tech-savvy and stats-savvy enough to play a meaningful role in the internal regulation of these technologies and methodologies as they are being developed.
As to the former, the use of big data in the EEO context, I think these earlier posts cover the ground:
- 10 Questions: Confronting Allegations Based on Big Data
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EEOC, Big Data and Disparate Impact: Barking up the Wrong Tree
As to the latter, that is a new topic.
It is increasingly evident that employers will have to build policies for the use of big data for employment-related purposes (hiring, compensation, retention, etc).
Given the increasing interest in the area by regulators and the complexity of defending suits predicated on it, employment lawyers must inject themselves early into the discussion of big data applications. That means embedding with technology providers (internal or external) at the earliest possible stage to ensure that the coding and use of big data is appropriately done (please see, for example, 10 Questions: Confronting Allegations Based on Big Data)
So, I may be half-joking about a CELTO, but the point is of utmost seriousness for the employment bar.
