University of Colorado Law Review
Recently, leading technology companies such as Google and IBM have started experimenting with "people analytics," a new data-driven approach to human resources management. People analytics is just one example of the phenomenon of "big data," in which analyses of huge sets of quantitative information are used to guide a variety of decisions. Applying big data to workplace situations could lead to more effective work outcomes, as in Moneyball, where the Oakland A's baseball franchise used statistics to assemble a winning team on a shoestring budget. People analytics is the name given to this new approach to personnel management on a wider scale.
Although people analytics is a nascent field, its implementation could transform the ways that employers approach HR decisions. Data may help firms determine which candidates to hire, how to help workers improve job performance, and how to predict when an employee might quit or should be fired. In addition, people analytics could provide insights on more quotidian issues like location of the employee offices and use of break times. The data that drives these decisions may be collected in new ways: through the use of innovative computer games, software that monitors employee electronic communications and activities, and devices such as ID badges that record worker locations and the tone of conversations. Data may also be collected from sources outside the employer which have been gathered for different purposes, like real estate records, or for undefined purposes, like Google searches.
While people analytics has great potential, no one has yet comprehensively analyzed the employment law or business ethics implications of these new technologies or practices. To date, most of the discussion centers on the uses for the data, not on its effects or its interactions with the law of the workplace. This Article seeks to survey these effects and interactions. Part I provides an overview, reviewing the history of employment testing, defining data mining, and describing the most current trends in people analytics. Part II describes the use of computer games and other technology to gather information. Part III examines the implications of people analytics on workplace privacy norms and laws. Part IV discusses the impact on equal-opportunity norms; while more and better information should lead to more merit-based decisions, disparate impact or unconscious bias could still operate to harm already-marginalized workers. Part V concludes with normative observations and preliminary policy notes. As the field of people analytics continues to develop, we must keep the values of employee voice, transparency, and autonomy as guiding principles.