Category Archives: screening

EEOC Shares Tips on Background Checks

handcuffsSome would argue the EEOC’s guidance on the use of criminal background check information offers more confusion than clarification for employers.

Critics—including a group of nine state attorney generals that penned a letter detailing its grievances to the EEOC—contend the agency’s regulations unduly burden employers with costs, could actually create more opportunities for discrimination, and may circumvent many state laws with respect to background checks for employment purposes.

The EEOC has made efforts to address such concerns. In September 2013, for example, the agency responded to the aforementioned letter, explaining its recommendation that employers use a two-step process for job applicants—including individualized assessment as the second step—rather than relying on bright-line screens alone.

Earlier this week, the EEOC—along with the U.S. Federal Trade Commission—made another attempt at shedding light on the subject, offering tips to employers and job seekers alike, in the form of two technical assistance documents.

The organizations issued the documents—one for employers, one for job applicants and employees—in an effort to “explain how the agencies’ respective laws apply to background checks performed for employment purposes,” according to an EEOC statement.

For example, the EEOC advises employers to “be prepared to make exceptions for problems revealed during a background check that revealed a disability. … If you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job—despite the negative background information—unless doing so would cause significant financial or operational disability.”

The document also reminds organizations of their responsibilities before taking an adverse employment action, such as supplying an applicant or employee a notice that includes a copy of the consumer report the company used in reaching its decision, and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”

The publication geared toward employers does contain some “helpful reminders for employers who pursue background checks on applicants or employees,” says Rachel Reingold Mandel, a shareholder in the Boston office of labor and employment law firm Ogletree, Deakins, Nash, Smoak & Stewart.

The information presented in the document is especially useful in light of FCRA requirements “[losing] the spotlight recently,” says Mandel, “as the EEOC and state law anti-discrimination focus has gained traction.

“This publication helpfully reminds employers that it is important to both use background checks in ways that do not discriminate based on protected characteristics—race, color, sex and national origin, for example—and to follow [FCRA’s] technical requirements.”

Organizations and HR leaders “have worked to balance their obligations under the federal Fair Credit Reporting Act against their obligations under applicable anti-discrimination laws, including those enforced by the EEOC,” she says.

“This publication provides a helpful guide to the steps employers should follow to comply with both the FCRA and federal anti-discrimination laws,” continues Mandel, adding that employers would be wise to “keep in mind separate state-specific laws, including those that prohibit asking any criminal background questions on employment applications.”

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HR: An Obstacle For Job Seekers?

imsis148-053Each morning here at HRE, I sift through last night’s Google alerts in search of tidbits that might be of interest to our readers. Most of what I find isn’t at all relevant to them, but this morning I stumbled across exactly the type of thing that raises hackles around the HR profession.

In a Q & A excerpted from his digital book, Fearless Job Hunting, Book 4, Overcome Human Resources Obstacles, professional recruiter Nick Corcodilos urges a frustrated job seeker to follow up directly with a hiring manager regarding a job the applicant felt he was eminently qualified for, but hadn’t been contacted about by HR.

“The company didn’t turn you down, the screener did,” says Corcodilos. “When a human resources person rejects you, it’s like having the gardener tell you not to bother coming around to a girl’s house. What does that tell you about whether the girl wants to date you? Nothing.”

Huh. Interesting comparison, but I think some HR professionals would argue this implies they may not quite understand what their organizations and managers are looking for in job candidates; an implication HR practitioners would probably take offense to.

To be fair, Corcodilos acknowledges as much, and (sort of) gives HR credit for its role in the hiring process.

“Now, some of my HR friends will want to slap me for telling you this. After all, many HR representatives put a lot of work into interviews, and they expect their conclusions to be respected. I understand that,” he says. “But no matter how good HR is at interviews, if you think you need to talk to the manager directly to make your case, it’s your prerogative. You must take action: Get past the guard.”

Corcodilos goes on to offer some words of caution to job seekers who take this circuitous route, saying that “HR will cut you off if it learns that you ‘went around,’ and depending on the hiring manager, HR might succeed. That’s HR’s job.

“You can be respectful and still be assertive,” he continues. “But don’t walk blind on the job hunt, because if you do, you’ll run into every single HR obstacle.”

After reading this excerpt, I sent a quick email to professor, management coach and consultant, author and frequent HRE contributor Dave Ulrich; curious to get his take on Corcodilos’ advice to overlooked job applicants.

Viewing HR as simply a hurdle to overcome, says Ulrich, may present would-be employees with other problems down the road—if circumventing HR helps them succeed in getting the gig, that is.

“Sometimes good intentions have bad consequences,” says Ulrich, professor of business at the Ross School of Business at the University of Michigan and a partner at the RBL Group, a Provo, Utah-based consulting firm.

“Stepping on or over HR to get a job creates an early enemy in the organization,” he continues, offering a tip of his own to job seekers.

“It’s better to work with HR and find out why they may [have been] excluded. … HR assures talent, leadership and capability to drive sustainable business results. Wise business leaders recognize these domains help execute strategy. Applicants who recognize this will find HR is an incredible ally, not a foe.”

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Mulling (Some Testy) Background-Check Testimony

The U.S. Commission on Civil Rights is still wading through testimony gathered Friday during its briefing to determine what impact the U.S. Equal Employment Opportunity Commission’s guidance on criminal-background checks is having or may have on the employment of black and Hispanic workers.

At this point, there doesn’t seem to be a precise timetable for an ensuing report and/or recommendation from the civil rights commission, or specific plan for the guidance, which the EEOC issued on April 25. But safe to say, one overriding theme of the Dec. 7 testimony – taken from 17 different individuals, representing employer groups, advocacy organizations, screening groups and providers, and employment sectors across the country – came in loud and clear: Businesses need to continue screening for criminal histories and they need some clarifications on portions of the guidance or they will remain, as one testified, “between a rock and a hard place.”

In the words of the USCCR, in its announcement about the Friday briefing, “the commission has initiated this investigation to determine whether the new EEOC guidance policy or other prohibitions or limitations on the use of criminal background checks results in lower job opportunities and reduced employment overall among minorities, including non-offenders.”

In other words, the commision’s concern – as raised over the past year by one of its commissioners, Peter Kirsanow – is that, for employers to either remove or not rely so heavily on the criminal-conviction question in a job application, as the EEOC has recommended, they might be creating a hiring system that, in turn, encourages discrimination of black and Hispanic males due to the sheer larger incarcertaion rates for these minorities.

As Rich Mellor – vice president of loss prevention for the Washington-based National Retail Federation and one of those testifying – told me in a follow-up phone call, “without that confirmation that an applicant does not have a criminal background,” an employer might be prone to try that much harder to hire a non-minority.

Even with such a confirmation, or disclosure of a criminal record and the chance to explain, minority job applicants are often hobbled by still-pervasive racial bias in hiring, according to testimony from Glenn E. Martin, vice president of development and public affairs for The Fortune Society, based in New York. He cited a Princeton University study of the low-wage labor market in New York that showed black and Latino applicants with clean backgrounds fared no better than white applicants just released from prison.

“Moreover,” Martin testified, “the positive outcomes for black applicants, when presenting evidence of a criminal record, were reduced by 57 percent.”

Mellor, in his testimony, raised an additional red flag about the transparency of this crucial criminal-background conversation. The EEOC guidelines, he said, “were enacted without giving retailers or other employers a chance for input,” according to an NRF release issued just after the briefing. “Hearings,” it says, quoting Mellor, “were held only with a ‘select group of predetermined stakeholders’ and actual text of the guidelines was released only the same morning that they were approved and implemented by the EEOC.”

The EEOC gave me this response today to the NRF’s release:

The NRF and other business groups communicated their views to the EEOC, and we considered them during the development of the guidance. Representatives of employers, individuals with criminal records, and other federal agencies testified at public EEOC meetings in November 2008 and July 2011.  The [EEOC] also received and reviewed approximately 300 written comments from members of the general public and stakeholder groups that responded to topics discussed during the July 2011 meeting.

The stakeholders that provided statements to express their interests and concerns include prominent organizations such as the Retail Industry Leaders Association, the U.S. Chamber of Commerce, the Society for Human Resource Management, the American Insurance Association, the National Association of Professional Background Screeners, the NAACP, Leadership Conference on Civil and Human Rights, the Public Defender Service for the District of Columbia, and the D.C. Prisoners’ Project, among others. Additionally, throughout the process of drafting the guidance, individual commissioners and staff met with representatives from various stakeholder groups such as the U.S. Chamber of Commerce, SHRM, HR Policy Association, College and University Professional Association for Human Resources, the National Employment Law Project and the Equal Employment Advisory Council to obtain more focused feedback on discrete and complex issues.

Many of those organizations listed above had people testifying Friday before the USCCR as well, in addition to employment lawyers Jackson Lewis and Duane Morris, screening provider EmployeeScreenIQ, the U.S. Bureau of Justice Statistics and many more.

Duane Morris’ Jonathan Segal, who testified Friday on behalf of SHRM, told the commissioners that some state and federal laws require employers to conduct background checks for positions such as daycare providers and firefighters. EEOC guidance, he said, puts employers in the tenuous position of “losing their state license if they don’t comply with a state law mandating criminal background checks and risking a class-action lawsuit if they go forward with criminal background checks and base hiring on the results.”

In addition, he said, the guidance’s interpretation of disparate impact appears to make employers “vulnerable to an EEOC investigation any time they take an adverse employment action against individuals of certain races or national origins based on criminal background checks regardless of whether they have conducted a valid individualized assessment — seemingly making criminal convictions a new protected status.”

Rest assured I will be following this and will report developments as I catch wind of them. Pretty packed with pressing issues for employers, I’d say.

 

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CEB Expands Its Footprint

After a bit of a lull in M&A activity, two major vendors kicked off this holiday week by announcing they will be joining forces.

Late this afternoon member-based advisory firm Corporate Executive Board Co. (NYSE: EXBD) said it had signed a definitive agreement to acquire U.K.-headquartered SHL, a leader in assessments for pre-hire and leadership assessments, for $600 million.

SHL, which purchased assessment provider PreVisor in 2011, currently has operations in Europe, Asia and the U.S.  and serves more than 10,000 clients in 111 countries.

Here’s what Tom Monahan, chairman and CEO of CEB, said about the acquisition:

 “The combination of these enterprises creates a uniquely valuable resource to help executives apply predictive analysis to the selection, development and management of talent. SHL’s established global customer base and rich talent analytics, its leadership position in corporate talent measurement and its proven business model … make it a compelling strategic and financial fit for CEB.”

Analyst Josh Bersin of Bersin & Associates (who admittedly also competes, in certain respects, with CEB) described the move as the latest in a series by CEB to become more of a data-driven provider of HR services. “It’s similar to what it did earlier in the year with its purchase of Valtera,” a workforce engagement firm.

Like it did Valtera, Bersin expected CEB to keep the SHL brand independent.

Bersin added that CEB picks up a “very profitable, high-margin business” at a time when its stock price has been struggling.

 

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Making the Sandusky/Screening Connection

With the Jerry Sandusky trial under way in Bellefonte, Pa., this week, it’s been impossible to avoid (even if you wanted to) news reports about testimony and other court proceedings – including yesterday’s airing for jurors of the videotape of Sandusky’s interview with Bob Costas in November.

Most pundits agree that the most horrific and damaging moment of that interview was Sandusky’s hesitant, repetitive response to Costas’ question, “Are you sexually attracted to young boys?”

Weighing in on that very issue today is the SingleSource Services Corp., in this release about an online assessment tool called the Diana Screen, a tool it claims can scientifically evaluate “those individuals at high risk to violate sexual boundaries with children and teens.”

As Donald J. Dymer, president and chief operating officer of the Jacksonville, Fla.-based background-screening company, puts it:

Child sexual abuse by those individuals entrusted with their care has once again taken center stage as the Sandusky trial unfolds. And yes, we are taking that opportunity to remind the public that a powerful prevention tool is available that would most likely have prevented Sandusky from being hired. An assessment that identifies those adults who do not recognize the appropriate sexual boundaries that should exist between adults and children.”

He cites studies from the Child Molestation Research and Prevention Institute showing 6 percent of adults are sexually attracted to children. “You won’t be able to recognize them without the Diana Screen,” says Dymer, “but they will recognize your children … .”

The release says the screen — consisting of 120 questions — is already being used by departments of juvenile justice, church diocese, Boys & Girls Clubs of America, mentoring agencies and residential homes for youths. Companies and organizations that put any adults into positions of trust with children and youths are encouraged to consider its use.

Dymer, a background-screening professional and longtime law enforcer, says it fills the void left by criminal background checks because it measures behavioral likelihood (such as a lack of sufficient social boundaries), as opposed to relying on past events.

We’ve been reporting for some time now on the changing face of the screening and assessment industry, whereby companies can now measure — through behavioral and psychological assessments — likelihoods that certain job candidates will succeed, learn quickly, be committed, be ethical and honest, present threats to a workforce, etc. etc.

Should a screen such as Diana join those ranks and become as widespread as Dymer hopes, my only concern would be that its accuracy is as failsafe as he says it is and that none of those 120 questions leaves room for doubt or interpretation.

 

 

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All Eyes on EEOC’s Enforcement Guidance

To mix a couple metaphors, the fallout from today’s updated enforcement guidance from the U.S. Equal Employment Opportunity Commission — specific to employers’ use of arrest and conviction records in employment decisions under Title VII of the Civil Rights Act of 1964 – has just left the gate.

The EEOC voted 4-1 today to approve the guidance document and also issued a question-and-answer document about it. Both documents can be found here.

“We had excellent testimony from two public meetings and hundreds of written comments submitted by a diverse group of commenters to inform our deliberations concerning the new guidance,” said EEOC Chair Jacqueline A. Berrien in announcing the vote. “The new guidance clarifies and updates the EEOC’s long-standing policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers and many other agency stakeholders.”

The guidance appears to have many supporters, including the Leadership Conference on Civil and Human Rights. In a letter to the EEOC prior to the vote, the Conference, joined by 54 other organizations, said that “due in part to racial profiling and discriminatory sentencing schemes, racial and ethnic disparities persist at all stages of the criminal justice system. … These inequities in the criminal justice system only magnify the discriminatory barriers already experienced by minorities and low-income individuals living in the United States.” (The link includes the full letter if you scroll down.)

I’m still waiting for a flood of legal alerts about today’s decision to balance out the applause and kudos. I’m sure they’ll be coming. In the meantime, advice issued Thursday by White Plains, N.Y.-based employment law firm Jackson Lewis gets to the heart of what employers might expect and should be doing in light of the new guidance.

“It is expected that the EEOC’s new guidance will substantially modify existing EEOC guidance on criminal background checks, which has been in existence since 1987,” the Jackson Lewis post reads. “Employers seeking to avoid Title VII litigation risks anticipated from the new guidelines may have to reconsider and refine their use of criminal background checks in making employment decisions, and individuals posing increased risk to co-workers, customers and the public, and to employers, may be hired or retained.

“Employers should review and modify, as necessary, their current criminal background-check practices once the new guidance is made known,” it reads.

That’s today, folks. Let the reviewing begin.

 

 

 

 

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To Catch a Thief

Guess it’s time for me to stop asking colleagues to “come by my office.”

According to Tom Phillipson, risk manager for Zurich-based Swiss Re Corporate Solutions and one of the presenters at this week’s Risk and Insurance Management Society Conference and Expo in Philadelphia, that particular phrase is one of many that could set off employer alarms.

Phillipson, speaking earlier today at a session titled “Fighting Crime in the Workplace,” noted that there wasn’t a whole lot new in the world of crime detection and prevention, with the exception of linguistic software that can scan emails to identify employees who might be up to no good. “It’s the only real innovation that’s come in the last few years.”

Phillipson advised attendees to check out a February 2012 Economist article that provides a good overview on how the software works:

To find employees with the opportunity to steal, the software looks for what snoops call ‘out of band’ events: messages such as ‘call my mobile’ or ‘come by my office’ suggest a desire to talk without being overheard. E-mails between an employee and an outsider that contain the words ‘beer,’ ‘Facebook’ or ‘evening’ can suggest a personal relationship.

Several vendors are mentioned in the piece, including a unit of Ernst & Young, Fast Tracking Technologies and NICE Actimize.

I followed up the RIMS session with a quick phone call to one of the sources quoted in the Economist article, Alton Sizemore, a former fraud detective at the FBI who now serves as director of investigations with Forensic/Strategic Solutions, an anti-fraud consultancy based in Birmingham, Ala.

Though he doesn’t consider himself an expert in the area of linguistics software, Sizemore says he could certainly see a positive advantage to using such technology. Though it’s hardly proof of wrongdoing, he points out, “You might be able to pick up an indication that someone might be up to something and that it might make sense to do a further review.”

That said, Sizemore suggests employers ought to tread carefully. Among other things, he explains, that means making sure your processes fully factor in privacy considerations.

The software obviously isn’t for everyone. Phillipson notes that a scan of a 10,000-employee organization costs about $45,000, and the Economist article mentioned mostly financial firms as clients. But I also recall a time when only a handful of companies tracked the Web browsing activity of employees.  So I suppose you never know.

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HR Bloggy Goodness

For some post-candy, pre-turkey goodness, we’ve got a lot of interesting — let’s even say, colorful, since we still have some beautiful fall foliage here in the East — blog posts for you to read from this, our first hosting of the Carnival of HR.

I was putting this together while listening to tunes on my iPod, thus the subheads, which are all songs — although only one of them is on my playlist (and it’s probably the one few of you know; hint: it’s by Randy Newman).

Since this is the season, I guess the first post should be about the flu. Nancy Saperstone of Insight Performance’s Workplace of Choice Blog points out HR’s vital role in keeping employees healthy and productive.

Speaking of vital roles, should HR be skilled at gathering information on competitors? Mark Stelzner at Inflexion Advisors offers up some thoughts — but no simple answers — on capturing competitive intelligence.

Maybe it’s a cultural thing, like respect. John Hunter at Curious Cat Blog writes about practical ways to respect co-workers and colleagues, while Ian Welsh at HR Toolbox says employee relations is the key to HR success.

 Everybody’s Talking at Me

Tim Gardner at the HR Introvert explores the “cult” factor in a company’s culture and Doug Shaw at Stop Doing Dumb Things To Customers just wants to sing about work and not in a good way, as evidenced the title, Crap Engagement.

Maybe you’re not into singing your heart out, but still want to communicate? Steve Roesler at All Things Workplace suggests you take your communication cues from your audience and “meet people where they are.”

One critical skill, writes Trish McFarlane of HR Ringleader, is mastering the art of negotiation — and she offers some practical tips to successfully enhance that competency, while Jennifer V. Miller at The People Equation writes that HR’s role in the workplace is similar in ways to curating an art competition.

 Leader of the Pack

Moving from the art world to the workplace, Wally Bock at Three Star Leadership writes that managers must enjoy enabling workers — if they are to be effective at their jobs. Want much more detail? Tanmay Vora at QAspire Blog provides 25 ways to effectively facilitate business strategies.

To create high-performing organizations, Laura Schroeder at Working Girl offers a list of questions that HR should ponder before making any workforce decisions, and Jon Ingham at Strategic HCM writes about human-centric management.

Humans are not created equal, I guess, as Ben Eubanks at upstart HR looks at some gender preferences for male and female bosses.

There’s also a difference, writes Dan McCarthy at Great Leadership, between leaders and managers. And there’s a difference between good succession plans and bad ones, writes Lois Melbourne at Aquire Blog.

Lonely at the Top

Carol Morrison at i4cp’s TrendWatcher writes about leadership competencies — and if companies are taking aim at the right ones or missing the target altogether — while Mike Haberman at Omega HR Solutions explores five powerful leadership lessons.

One of those lessons, writes Linda Fisher Thornton of Leading in Context, should point out the important reasons to engage in social media.

We can segue from there into HR technology, which is where Naomi Bloom at In Full Bloom puts on her turban and does an imitation of Carnac the Magnificent by providing answers to 2011′s unknown questions. (Full disclosure: I met Johnny Carson once and she doesn’t look anything like him!)

 On The Road Again

John Sumser at HR Examiner, on the other hand, did an imitation of a nonstop traveler, and even though it lasted only seven weeks, it pointed him to some insights about mobile recruiting.

The insights offered up by Paul Baribeau at Workplace Tribes Blog involve those impacting HR strategies at a game development start-up.

Paul Smith at Welcome to the Occupation says HR can do better when it comes to recruiting disabled job candidates; Joe Jones at The Rainmaker Group’s Maximize Possibility Blog says ditto about leveraging the sales-talent selection process; and Mike McCarty of Safe Hiring Solutions says ibid on adding value to employment background checks.

We will close out this section on recruiting with an infographic from Joseph Fung at Tribe HR, exploring whether job boards matter anymore to the recruiting process and we’ll close out this issue of Carnival of HR with a blog post by Lynn Dessert at Elephants at Work on the importance of saying thank you.

So, thanks to everyone who participated in this Carnival of HR — and to everyone reading this. I hope you find this HR bloggy goodness is something to sing about.

And while you’re here, please scroll around The Leader Board. Some of our recent posts include this report from The Conference Board’s Human Capital Metrics Conference; the induction of three new Fellows as well as the induction of IBM’s Randy MacDonald as a Distinguished Fellow of the National Academy of Human Resources; and a bit of Romance, HR-Style.

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EEOC Mulls Fairness of Criminal Background Screens

Attorneys, government officials and other experts met in Washington Tuesday (July 26) to testify before the U.S. Equal Employment Opportunity Commission on the pros and cons, and fairness and safety concerns, of using arrest and conviction records when making hiring decisions.

Employers often refuse to hire people with criminal records, the commission was told, even years after they’ve completed their sentences, leading to recidivism and higher social-services costs.

“This major barrier to employment touches a broad swath of the U.S. population,” said Amy Solomon, senior adviser to the assistant attorney general of the Office of Justice Programs at the U.S. Department of Justice. “According to the DOJ’s Bureau of Justice Statistics, more than 92 million individuals have a criminal history on file in state criminal-history repositories.

“This figure is for year end 2008,” she testified, “and may include individuals with records in more than one state. That said, with about 14 million new arrests recorded annually, it is clear that a significant share of the nation’s adult population – estimated at about one in three or four adults – has a criminal record on file.

“Many arrests are for relatively minor crimes,” Solomon testified. “And what is often forgotten is that many people who have been arrested –and therefore technically have a criminal record that shows up on a background check — have never been convicted of a crime. This is true not only for those charged with minor crimes, but also for individuals arrested for serious offenses. A snapshot of felony filings in the 75 largest counties, for example, shows that one-third of felony arrests never lead to conviction.”

Barry A. Hartstein, a shareholder in the law firm of San Francisco-based Littler, testified on the confusing and often contradictory pressures on businesses when using these records for hiring purposes, including conflicting laws. He urged the EEOC to consider these constraints on businesses when developing guidance or when deciding when to sue companies or not.

“My basic premise,” said Hartstein, “is that any discussion of an individual’s criminal history in the employment setting must be put in the proper context. It is multi-dimensional, ever changing, with no easy answers or any standard formula, such as ‘one size fits all.’ ”

The EEOC provided me with this link to all details of the meeting, including a press release and full written testimony from all participants. The commission will hold the meeting record open for 15 days and is inviting members of the public to submit written comments on any issues or matters discussed.

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To Tell the Truth

Should we expect the next innovation in screening technology to come from, of all places, Russia?

A story appearing on today’s New York Times’ front page, entitled “Russia A.T.M. With an Ear for the Truth,” reports on how Russia’s biggest retail bank is testing the use of ATMs with voice-recognition software to determine whether or not someone is telling the truth.

The software, developed by the Speech Technology Center, analyzes “vibrations as shaped by the contours of an individual’s throat, larynx and other tissue involved in speech” to identify whether a person might be in the midst of telling a lie. Russian law-enforcement databases of people found to be lying were used to develop the software. (No doubt the voice-recognition technology is more sophisticated than some of the stuff I’ve encounter in my quest for customer-service help.)

Banks would use the analysis, along with other data collected by the ATM, to determine the truthfulness of applicants when they’re answering questions about whether they have a job or any outstanding loans.

Of course, this has nothing to do with HR. But as I read the NYT’s story, I couldn’t help but wonder whether some day we might see technology like this make its way into the job-interviewing process, where more than a few candidates have been known to stretch the truth. Companies already do thorough background checks of job candidates. So how about a little voice analysis to boot?

I’ll be the first to admit that’s a scary thought. And I imagine legality and privacy concerns would present some serious stumbling blocks. But in this day and age, it’s certainly not outside the realm of possibilities.

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