News & Commentary

October 4, 2022

Chinmay G. Pandit

Chinmay G. Pandit is a student at Harvard Law School.

In today’s [email protected]: The DOJ warns employers that recruiting platforms may put them at risk of violating immigration laws. Additionally, Microsoft’s CEO cautions managers against spying on employees.

DOJ Warns Employers that Recruiting Platforms May Put Them at Risk of Violating Immigration Laws

The Justice Department warned employers that using online recruiting platforms may run afoul of immigration laws. By the end of September, roughly 20 companies — including Walmart, Capital One, and KPMG — settled with the DOJ’s Immigrant and Employee Rights (IER) Section for their use of a Georgia Tech recruiting platform that “discriminated against non-citizen applicants by illegally indicating that US citizenship was a requirement for the position.” Although the companies denied wrongdoing, they agreed to pay $1.1 million in civil penalties to settle the case.

Immigration attorneys claim that discrimination on the basis of citizenship — which is illegal unless mandated by law — has become particularly complex and wide-spread with the broad implementation of technology tools in the hiring process. The IER is now further investigating whether these programs yield a disproportionate harm on vulnerable immigrant groups, such as asylum seekers and refugees, through discriminatory algorithms and unfair documentary requirements.

The IER’s lawsuit against the 20 companies also indicated that companies may still be held liable for inadvertent discriminatory practices that occur using third-party technology. As a result, companies must take proper precautions to ensure that their recruiting technology is programmed to mitigate intrinsic biases. For example, according to Kersey Immigration Compliance LLC, companies should always verify that the default settings of their recruiting platforms are revised to not ask candidates about citizenship (unless legally required), just one of many potential steps that hiring companies must take when leveraging technology throughout the recruiting process. Thus, with the DOJ squarely placing the burden of vetting the recruiting technology onto the hiring companies, immigration attorneys have noted that HR teams must be “very wary of technology … unless it is vetted by people who understand the legal requirements behind the questions being asked.”

Microsoft CEO Cautions Against Spying on Employees

At the end of September, Microsoft released the results of an internal survey regarding corporate attitudes, which revealed that even two years after the pandemic began, roughly 85% of managers worry that they are unable to tell if their employees are getting enough work done when collaborating remotely. Conversely, 87% of workers reported that they believe their productivity is perfectly fine.

According to Microsoft CEO Satya Nadella, “[l]eaders think their employees are not productive, whereas employees think they are being productive… One of the most important things for us in this new world of work and hybrid work is to bridge this paradox.” In particular, Nadella warned managers against responding to their “productivity paranoia” with invasive practices, like spying on employees. “We don’t think that employers should be surveilling” their workers, said a Microsoft vice president, expressing concerns that hyper-monitoring of workers will stoke negative employee sentiment and accelerate workers’ burnout. Microsoft itself has recently pulled back on its own workplace productivity measuring products, such as its Productivity Score feature, to limit the potential harm of over-bearing managers.

Discussions about workplace surveillance — a practice that can include monitoring workers’ keyboard strokes, reading emails, and watching employees via laptop cameras — has led to a heated debate among employers and employees, particularly in the wake of the “quiet quitting” trend that has instigated concerns among managers about their teams’ waning productivity. Microsoft, though, seems to be hoping that it can re-orient employers’ mentality about worker productivity, recommending that they scrap intrusive employee surveillance and eliminate other unnecessary work mandates, claiming “we just think that’s wrong.”

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