Time & Attendance
By Ariel Parrella-Aureli
Nov. 14, 2017
The skills that robots have in the workplace are increasing rapidly from building cars to working factory lines to transcribing lengthy documents.
But catching sexual harassment in the workplace? It offers some intrigue to legal experts.
And considering sexual assault allegations in corporate America continue to occur with startling regularity, those experts say artificial intelligence could be a key tool in the future to help catch inappropriate behavior in the workplace. They quickly add, however, that such technology must work in tandem with HR professionals who can monitor and understand the data.
Silicon Valley is looking at ways to change the culture that is enabling sexual harassment and poor treatment of women in the workplace. California employment and entertainment litigation lawyer Eve Wagner, a founding partner of Sauer & Wagner LLP, a boutique law firm in Los Angeles, wrote in an op-ed on Law360.com that women have been empowered by publicly telling their stories.
She notes this cultural shift being seen around the issue is good, but told Workforce in a separate interview that there has been “a resurgence” of allegations. Although companies are considering artificial intelligence, or AI, to solve the problem, there are several factors to look at before it can work successfully, she said.
“A lot of companies now are implementing [AI] monitoring software,” Wagner said, adding that the reasons could be numerous — checking an employees’ job satisfaction, productivity, behavioral issues and potential harassment and retaliation. “It’s a newer trend and has not been tested out nationally to see the scope because obviously this infringes on people’s feelings of privacy.”
It’s a hurdle that attorneys and employers must be most aware of, one that changes depending on each state’s privacy laws. In California, Wagner said the privacy laws are stricter and state mandates are in place to bar employers from getting employees’ social-media passwords and GPS locations without consent.
Theoretically, the Electronic Communications Privacy Act of 1986, which prevents the government from monitoring electronic communications of individuals and businesses without consent, could protect employees, but Wagner said that once employees sign employee handbooks, they generally give consent to employer monitoring. Although most workplaces don’t actively check employee communications, she said just knowing that companies have the option is an unsettling feeling for the employee.
“It can create a stressful, demoralizing environment, even if it turns out that it’s not legally an invasion of privacy,” Wagner said.
AI also brings into question the data it could uncover and what HR needs to do about it. Sheryl Simmons, chief human resources officer at Maestro Health, said the data AI uses to potentially find inappropriate behavior must be balanced with a person’s work. More importantly, she said companies must have best practices and analysis in place for how to use the data before relying on it. Determining its relevance and if its findings should be pursued is how it can help the HR field in a more efficient way, without throwing massive amounts of data to sort through.
“Smarter should always mean more strategic, and that is where AI is going to free up resources,” Simmons said, adding that she sees AI being helpful not only for catching sexual harassment but also in recruiting, benefits, onboarding and management.
AI expert and principal analyst Ray Wang is passionate about technological tools and how people use them. As the founder and chairman of Silicon Valley-based Constellation Research Inc., Wang works with companies to make technology better assist their business strategy and future success. He said AI’s aid in the workplace will show trends on communication and office culture comfort by recording data through technology’s natural language processing engines, which examine sentences and analyzes them for different types of patterns.
“As people start to pick up these patterns, you are learning culturally what are acceptable situations,” Wang said. “We are seeing these tools emerge as a way to help folks figure out what are normal types of communications.”
Wang said AI will yield false positive results at times, so the goal is to improve the precision of those false positives by looking at the patterns the data brings in and knowing when to use automation versus manual intervention. He is confident AI will be a major tool for compliance and regulatory requirements and will be a rising trend culturally and corporately.
Silicon Valley’s recent bouts with sexual assault allegations have tainted the tech hub’s image, and Wang said the area is being scrutinized because of it. Despite this, he sees many tech companies using AI tools to catch inappropriate behaviors that would otherwise go unnoticed.
“There are definitely abuses happening but there is a witch hunt going on in the Valley at the same time,” Wang said.
AI use will only grow in the workplace and outside of it, and attorneys agree that HR will need to be prepared on how to handle the data. Marko J. Mrkonich, an employment law attorney with Littler Mendelson in Minneapolis, said it is too soon to see case laws based on AI catching sexual harassment in the workplace.
Wagner added that such cases could make their way to federal courts, but both lawyers said the data does not necessarily catch physical harassment if it is only looking at electronic interaction in the office.
“Realistically, right now the most prevalent use of analytics is still in the recruiting and selection processes than it is in the workforce management process,” Mrkonich said. “There are all sorts of areas where data analytics have the potential to help drive better behavior and better decision-making.”
Ariel Parrella-Aureli is a former Workforce intern. Comment below or email email@example.com.
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