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Highlights from AccelPro Employment Law - Volume I
With Mike Selmi, Stacey McClurkin Macklin and Cristina Gallo | Interviews by Matt Crossman
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Welcome to AccelPro Employment Law, where we provide expert interviews and coaching to accelerate your professional development. Today, we are featuring excerpts from recent interviews with experts in the employment law field.
For the full audio and transcripts:
Sandra Day O'Connor College of Law’s Mike Selmi on Racial Bias in Algorithmic Decision Making
Stinson's Stacey McClurkin Macklin on Unfair Labor Practice Charges
Cohen, Weiss and Simon's Cristina Gallo on Starbucks and the Changing Labor Landscape
With Mike Selmi, Professor at Sandra Day O'Connor College of Law, Arizona State University
Matt Crossman, Host: You wrote that many critics say algorithms perhaps cause more problems because they are biased. I want to read a quote from your article. “The real question of interest is not whether algorithms can produce discriminatory results - they can - but whether those results are likely to be more discriminatory than our existing systems.”
This is a question every HR exec and employment lawyer listening to this wants to know the answer to. Are algorithmic decision-making tools, in fact, more likely to produce discriminatory results than our existing systems?
Mike Selmi: This is the reason I kind of jumped into this space over the last five or six years. There’s been a lot of criticism of the move toward algorithmic decision making in hiring in particular, although it’s used in other areas of employment, with this notion that algorithms can be biased, which is true.
I also said in that piece, I was sort of surprised that people were surprised by that, that they thought that this was a novel discovery. Any algorithm’s only going to be as good as the data that it relies on and the way it’s programmed and the like. It seems highly unlikely, although it’s certainly possible, that somebody programming would do it intentionally to discriminate.
Most employers are seeking to use algorithms for two reasons. One is for efficiency. The volume of applications makes human review hard. But the other reason that a lot of employers are doing this is to try and achieve greater diversity, less discriminatory processes in hiring. So it was surprising to me that folks were so focused on the potential for discrimination in algorithms.
From my research, it’s clear that algorithms can be biased, and there’s lots of different examples of that. I haven’t seen anything that would suggest that algorithms have been more biased than humans. I suppose it could happen. As biased? That’s certainly possible. More biased? It’s highly unlikely, and I haven’t seen any evidence to suggest that.
There’s lots of different things programmers can do to reduce bias and to be aware of that. There’s really been much more development toward equitable algorithms. Programmers are much more aware. There’s lots of different things that they can do to reduce bias, which is much harder to do with humans.
We’ve been trying to reduce human bias for generations, and we actually have made surprisingly little progress on that. As I say in the article, between a computer and humans, trying to figure out which is going to be less biased, I would go with the computer.
With Stacey McClurkin Macklin, Of Counsel, Stinson
Matt Crossman, Host: You transitioned from private practice to the NLRB back to private practice. Walk me through those stages.
Stacey McClurkin Macklin: So I actually had a little bit of time with the government prior to my first initial step with private practice. I was at a sheriff’s office in Georgia until there was a change in administration.
Once I left the sheriff’s office, I went into private practice for a while doing employment law. That was a great experience. I had previously done employment law for several summers in between law school years, and I enjoyed that. But one thing that was always in the back of my mind was this three-hour class I took on Fridays in law school - labor law.
And it was funny because I remember having some friends who were very much like, oh, why did we sign up for our class on a Friday afternoon for three hours? What is wrong with us?
And I just thought it was such a fascinating class. I remember the professor to this day, Curtis Mack. He would always tell us about his experience working with the National Labor Relations Board.
He would tell us his experiences, the cases he tried or the different elections, and I thought, that would be really cool. I really wanted to get the opportunity to not just have heard about this in class but actually get hands-on labor work. So when presented with the opportunity, I jumped at it and had a very rewarding career at the National Labor Relations Board.
Getting to actually see and gain that institutional knowledge was totally valuable. Ultimately, over time, I started thinking that the work that they do at the board is very important, but I also started thinking I could be in a position to work with employers who need good counsel on how they can limit their risk.
There’s situations where some companies are making decisions and they just don’t have that guidance and don’t know what issues to actually look out for when making those decisions. So that’s when I started looking at, What opportunities do I have to actually use my knowledge to educate employers on how they can still achieve their goals and their objectives and their business, but also do it within the confines of the law?
MC: I want you to imagine Curtis Mack, your old professor, gives you a call and says, Stacey, I heard you followed me to the NLRB. What was that like? Tell me a war story.
SM: So one particular occasion I was conducting a manual election, and the joke that came out of it is Stacey had the police called on her.
The police weren’t actually called on me. But a sheriff’s deputy’s office did show up because unfortunately, although the employer agreed to host the election on their property, they did not want to allow the union to be present during certain portions. This particular owner of the company said, why are they on my property?
And I’m thinking, what? Who are we talking about? This is the union. They’re here for this pre-election conference. But the company wasn’t having it. And so ultimately they called the police. The sheriff’s office came out and spoke to me. What are you doing here? Can you do this somewhere else? And I said, I’m confined to doing this where the parties actually agreed to hold this election.
And I ultimately figured out that one particular manager did not sign off on it, their attorney did. So it seemed like there was some confusion as to what would take place. They always say, phone home if there’s an issue. So I’m phoning home to my supervisor saying, This is new. I’ve never had this happen.
And then, the cops returned and I’m thinking what now? The deputy comes up to me and says, They don’t want you to conduct the ballot count and allow the union to be there. I’m thinking, but this is something that they agreed to. I’m not authorized to leave. I have to do what’s on this paper that they agreed to. And I phoned home, and they confirmed, you can’t move from where the parties agreed to be.
And then the deputy said, to diffuse this, would you mind doing your count on the side of the road? And I said, excuse me, you want me to do the count - like the ballot count - on the side of the road with the cars coming? What are you talking about?
That ultimately didn’t happen. The deputies stayed around, and eventually, the employer did allow the union representatives to be present during the ballot count. Afterward, I packed up my ballot box, my booth, and I had a lovely police escort off of the property, and so the joke was when I got back to work, people were like, so we heard you got escorted by the police. We heard you were causing a scene down there.
I just did my job.
With Cristina Gallo, Partner at Cohen, Weiss and Simon
Matt Crossman, Host: Regarding the Starbucks case in particular, what has been the most challenging part?
Cristina Gallo: Probably the volume. There have been a lot of different shops. In my particular case, we’ve been mostly focused on Connecticut, New Jersey and New York area stores. There’s the sheer number of stores, and then there’s the degree to which the employer has heavily litigated various stages of the campaign.
So we’ve really had to dust off our National Labor Relations Board rules and regulations and playbook. From a lawyer’s perspective, we’ve really had to push a lot more paper than I think has often been the case in campaigns. And push a lot more paper at the same time - a lot of filings, a lot of motions, a lot of oppositions to motions. Things that have come up before but just haven’t come up before with such frequency.
MC: What does that tell other labor attorneys and HR executives about the distinctiveness of this case?
CG: I think that we are going to see more use of the NLRB procedure potentially than we have seen before. I don’t say that as a speculation. I actually did hear from a board agent who I’ve been working with on a Starbucks case. The board agent of the NLRB said that other employers have started to replicate some of the same motion practice tactics that Starbucks has used in its cases. So people are paying attention to what strategies have been employed.
And I think that at least for the near term, we’re going to see more of this kind of conduct on the part of the employer’s lawyers.
MC: What is a good counter strategy for the labor side?
CG: Well, the counter strategy is never to rely exclusively on lawyers to save the day. And I think that is really one of the things that’s really wonderful about this campaign and the Starbucks Workers United campaign is how aggressively the workers have themselves been engaged in on the ground, direct action.
There’s been real mobilization on the part of the workers because none of these campaigns can be won with one tool alone. So like I said, where the legal is one tool, the ground activity and worker mobilization is another tool. And then there’s a third tool that I think is generally an important ingredient, which is the corporate and research strategic element.
Of course I may be a little biased because that’s where I started out. But I am firmly convinced that lawyers can’t do it alone.
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