From Portside <[email protected]>
Subject How Workers Really Get Canceled on the Job
Date April 8, 2021 3:45 AM
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[ Pre-hiring personality screening and ongoing employer monitoring
explicitly weed out workers likely to agitate for a union.]
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Nathan Newman
April 6, 2021
The American Prospect
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_ Pre-hiring personality screening and ongoing employer monitoring
explicitly weed out workers likely to agitate for a union. _

Walmart employees take job applications and answer questions during a
job fair at the University of Illinois in Springfield., SETH


In her 2001 book _Nickel and Dimed_, Barbara Ehrenreich wrote about
being given a personality test when interviewing for a housecleaning
job, which asked such questions as whether “management and employees
will always be in conflict because they have totally different sets of
goals.” She also described alarming the tester for Walmart, by
asserting some measure of independence on a couple of questions.

Ehrenreich’s working-class job seeker was among the real victims of
cancel culture in the U.S., not A-list writers and actors. For
decades, millions of workers have been rejected for employment based
solely on their answers to pre-employment personality tests
administered by corporate America. Instead of social media mobs,
inscrutable algorithms silently delete people from interview
callbacks, without their résumé even being seen by a human being.
And make no mistake, rooting out dissent is the primary goal of these
hiring algorithms.

Charles Hughes, who in the 1970s was a key modern proponent of
personality tests to assist corporate clients in screening out
pro-union hires, would argue that what distinguished U.S. workplaces
from their European counterparts was unfettered management control
over the workplace. Maintaining that control was a core motivation for
remaining non-union, and pre-hire screening and surveillance
facilitated that.

But where pre-hire screening in the 1980s was the province of mainly
manufacturing firms and a few service industry leaders like Marriott
and Walmart, it has now become pervasive across the economy, with
greater and greater sophistication. The personality testing industry,
both for new hires and existing employees, was estimated at more than
$3 billion
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2019. Today, 80 percent of Fortune 500 companies use personality tests
to assess employees, before and during employment. Josh Bersin, a
consultant formerly at auditor Deloitte LLP, estimated that in
2014, 60 to 70 percent of prospective workers were facing these tests
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up from 30 to 40 percent just five years earlier. More current numbers
are hard to come by, and estimates vary.

Kenexa, bought by IBM for $1.3 billion in 2012­­, reportedly does 20
million assessments each year. Human resources software company UKG,
owned largely by private equity firms Hellman & Friedman and
Blackstone, reportedly has a database of information
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hundreds of millions of job applicants and employees, as it tracks
people as they move from job to job. And test prep isn’t just for
the SAT anymore: Companies like JobTestPrep provide materials to
prepare for personality and other pre-hire tests for hundreds of
leading employers, from McDonald’s to defense contractors like

Adding to the creepiness factor is the rising use of video
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by artificial intelligence software to sort candidates by facial
expressions, tone of voice, language speed, and other factors, sending
those who pass those tests for final review by actual human beings.
COVID has only accelerated use of these technologies, as recruiting
gets done increasingly over screens.

Business touts the tests as increasing worker satisfaction by matching
people with the right job, but Roland Behm, a critic of the assessment
industry, highlights
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host of academic studies that have found little correlation between
job performance and personality tests. Meanwhile, Gallup has seen
little change
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employee satisfaction and “disengagement” since 2000, even as
personality assessments exploded in the pre-hire process. This leaves
many suspecting less savory and even illegal motives for the tests.

Governments have launched multiple lawsuits over charges that pre-hire
screening serves as a covert means of discrimination against those
with mental illness. Based on CVS Pharmacy asking questions about
whether applicants “change from happy to sad without any reason”
and whether “your moods are steady from day to day,” the Rhode
Island Commission for Human Rights found “probable cause” in 2011
that the company was violating state anti-discrimination laws, while
Target paid $2.8 million in 2015 to resolve a charge that their
personality tests were violating the Americans with Disabilities Act.
And in 2018, Best Buy and CVS reached agreement with the U.S. Equal
Employment Opportunity Commission to stop using personality
assessments after investigations found they had disparate impacts
based on race and national origin. Others have noted the
ways AI-driven video interviews
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unfairly screen out candidates with disabilities, especially those on
the autistic spectrum.

Testing may not necessarily intend to screen out those with mental
illness, but employers _do_ want to root out “disgruntled”
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which testing companies repeatedly highlight as a prime target for
elimination by their personality tests.

As business marketing professor and consultant Neil Kokemuller has
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“Disgruntled workers … potentially persuade others that the
company is unfair or not a good place to work. Pre-employment
screening tools help companies avoid hiring employees that could
become negative influences on the workplace.” One advertisement for
a pre-hire test aimed at nurses and other professional employees
promised it could weed out “undesirable behaviors” such as
“focus on pay, benefits, and status,” in favor of “desirable
behaviors,” such as “focus on enjoyment of the job.”

In fact, screening out union supporters was the original purpose when
pre-hire testing was largely born in the 1930s in the wake of federal
labor law banning companies from explicitly blacklisting union
supporters. Substack bloggers may complain about “blacklists,” but
pre-hire personality tests are the modern-day extension of the
original anti-union blacklists.

Early personality tests applied in the 1930s—largely based on WWI
recruitment screening tools—were driven by the bias that joining a
union was based on “mental disintegration.” They were subsequently
not particularly effective, and their usage waned. But in the 1960s
and ’70s, a new breed of industrial psychologists
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personality tests using new social science research and techniques.

Nathan Shefferman, Sears’s union avoidance expert, would build a
consulting firm around the basic surveys he introduced to reveal union
sympathies of potential employees. Charles Hughes, who worked in labor
relations at Texas Instruments and IBM, would establish his Center for
Values Research in 1974, dedicated to assisting “organizations that
choose to be union free.” He would train over 27,000 managers in
using his Employee Attitude Surveys (EAS) to screen out likely union
members, and would boast, “We have never had a union-free client
become unionized.”

In a 1979 U.S. congressional oversight hearing, management consultants
explained that they told clients to use surveys to identify traits
often associated with union support, such as avoiding employees who
participated in too many outside clubs, expressed “loving a
challenge,” or were the youngest member of a family.

In _Selling Women Short: The Landmark Battle for Workers’ Rights at
Wal-Mart_, Liza Featherstone detailed how Walmart managers used
personality tests to screen out those likely to be sympathetic to
unions. For example, the company encouraged them to avoid hiring
“cause-oriented associates” who led any kind of political
demonstration in high school.

Personality surveys are also used after employees are hired, often in
conjunction with monitoring employee internet use
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logging keystrokes, and tracking employee emails, to build “heat
maps” of people and departments likely to unionize. Companies like
WorkTango and Perceptyx, the latter used by 30 percent of Fortune 100
companies, build “union vulnerability indexes”
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help companies co-opt or ease “troublemakers” out the door, long
before a union election might cast legal suspicion on the termination.
Timothy Davis, a union buster at Constangy, Brooks, Smith & Prophete,
has told employers
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they need to figure out whether “workers trust the employer more
than the union,” and to “conduct employee and management
surveys” as part of a general system of preempting union support
before an election is called.

Most alarms about Big Data are about individual discrimination, but
exclusion of the potential Norma Raes of the workplace ends up harming
the whole workforce. All workers lose out as much or more than the
identified agitators, since average workers lose out on the wage and
benefit and workplace condition gains from unionization.

So what can be done? Legislation has restricted or banned use of some
screening tools by employers, including medical exams, polygraph
tests, genetic information, credit reports, criminal background
checks, video surveillance, and mandatory disclosure of social media
passwords. But personality tests and surveys give employers so many
proxies for banned tools that employers can often achieve whatever
exclusions from their workforce they desire.

Some firms have been challenged under anti-discrimination laws for
specific questions on their screening tests, and more recently,
Illinois put some restrictions on use of AI
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analyze video interviews, and a number of states are discussing
following suit.

However, any state restrictions on personality tests to stop
anti-union questioning would likely be struck down by the courts as
preempted by federal labor law. And of course, new federal legislation
would face all the obstacles federal labor law reform has faced in the
Senate over decades.

But there are strong legal arguments that the National Labor Relations
Board (NLRB) could issue new rules to restrict, audit, and even ban
personality testing based on current law. Given the evidence that such
testing is used to screen out pro-union employees and identify current
employees likely to unionize, the NLRB could build on past precedents
that prohibited direct and even indirect questions about the union
views of applicants and current employees. Where a union suspects that
such screening led to losing a union certification election, they
could bring a challenge before the Board to demand an investigation
into screening algorithms. In theory, companies could face massive
back-pay orders for excluded employees, given the volume of
applications screened by testing companies.

The NLRB has long had a prohibition on polling employees for their
union views, known as the _Struksnes_ rule (named for a 1967 NLRB
decision), which applies even when no union election is scheduled.
Given that anti-union consultants openly claim to use employee
personality testing and surveys to indirectly identify union
supporters, Biden’s NLRB should be able to take them at their word
and ban most if not all personality testing of prospective or current

Notably, the Supreme Court has directly upheld the ban on employee
polling, with even Justice Scalia agreeing that the NLRB had
reasonably found that “employer polling is … ‘unsettling’ to
employees, and so has chosen to limit severely the circumstances under
which it may be conducted.” The creepiness of privacy invasions by
employers may encourage even some conservative justices to sustain a
Biden NLRB rule restricting personality testing abuses.

The payoff from preventing employers from screening out
“troublemakers” or identifying those who manage to slip onto the
payroll could be a significant improvement in the ability of workers
to build a critical mass of union supporters to expand collective
bargaining across the country.

And if we are going to have a national debate about free speech in the
workplace, stopping the use of personality tests to cancel
“disgruntled” workers should be front and center.

_Nathan Newman is a writer and professor who teaches criminal justice
and sociology at the City University of New York._

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_Used with the permission. © The American Prospect
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All rights reserved._

_Click here to support the Prospect's brand of independent impact
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