The world of Big Data has arrived, and it is beginning to affect employers and their decision-making in ways undreamed of even a few years ago. Employers can access more information about their applicant pool than ever before, and have an ability to correlate data gleaned from the application itself, perhaps supplemented by publicly available social media sources, to determine how long a candidate is likely to stay on a particular job. Similarly, by combing through computerized calendar entries and e-mail headers, Big Data can tell us which employees are likely to leave their employment within the next 12 months. At the same time new tools and methods that rely on concepts of Big Data are becoming part of the daily landscape in human resource departments, employers continue to operate in a legal environment based on precedent and history with few guideposts that translate seamlessly into the world of Big Data. The issues that can arise either are brand new or develop in a context that makes yesterday’s compliance paradigm difficult to apply.
Employers need to be able to understand what Big Data means for background checks and employee privacy, to know the implications for the employer’s data security obligations, to be able to use Big Data to reduce the risks of traditional discrimination claims without giving rise to new varieties of such claims, and employers need to know how to manage litigation with expanded eDiscovery and new theories of liability and new defenses based on statistical correlations.
Responsible employers will be mindful of the risks attendant upon collecting and storing Big Data, while simultaneously using Big Data to achieve key business goals and create a more cohesive and collegial working environment. To do that well, it is vital that human resources professionals and their lawyers have a seat at the table when business decisions are made regarding how and when to use Big Data. The first step in securing that place in the decision-making process is to better understand what Big Data is and how it relates to the current legal system and human resources framework. Our goal in this paper is to help employers achieve that improved understanding.