Leveraging Data to Mitigate Legal Risk: Inside Ogletree’s Workforce Analytics and Compliance Practice Group

Announcer: Welcome to the Ogletree Deakins podcast, where we provide listeners with brief discussions about important workplace legal issues. Our podcasts are for informational purposes only and should not be construed as legal advice. You can subscribe through your favorite podcast service. Please consider rating this podcast so we can get your feedback and improve our programs. Please enjoy the podcast.

Tim Fox: Hi, everyone, excited to be here with you today. I am Tim Fox, the firm’s Director of Practice Innovation and Analytics, and I am excited to have with me Scott Kelly, who is a shareholder in our Birmingham office, and he’s also chair of our new Workforce Analytics and Compliance Practice Group, which is what we’re here to talk to all of you about today, which is to both announce this new practice group, as well as to give you some details about it. And we think that you’re going to find this podcast really interesting in what we’re going to cover and that you’re going to find this new practice group can meet a lot of your previously unmet needs when it comes to your workforce, and your people, and your analytics needs. So, Scott, with that, let’s maybe jump right in and talk about why this practice group. Why is it important? Why did the firm want to launch a new practice group? It’s not the easiest thing to do.

Scott Kelly: That is true, and thanks for the intro, Tim. And I think the firm really saw a moment, and it’s really not like we’ve not been doing workforce analytics for our clients. The increase in the data that clients are starting to collect and store, we’ve been looking at that for a long time, but there has been an increase of it. And we know and we’re very mindful, because we work with employers all the time, that they’re using that data in ways to help manage their business in addition to looking at risks from a legal standpoint or through that legal lens. And we just felt like it was a good opportunity with all the changes that are coming out with the new administration to really focus in on how we could leverage our internal experience and really the capacity that we have within the firm.
We’re all employment, all the time here at Ogletree. Really, we’re a firm filled with lawyers and legal professionals that really dig in on all aspects of the lifecycle of the employment relationship. And so we thought it would make a lot of sense to take our experience in a particular area, whether it happens to be with benefits, or dealing with reductions in force, or with recruiting and talent acquisition, or helping manage compensation decisions for employers, leverage that experience and really partner with members of your team, Tim, who work here.
And I think we’re unique, in a way, to have some subject matter experts that have these analytical skills, and really marrying the two together brings a multidisciplinary approach to not only the legal issues, but how can we deliver what the data happens to be telling employers in a way…especially if we’re providing legal advice under the cover of the attorney-client privilege. So, those decisions that employers are making, especially around compliance issues with different federal anti-discrimination laws, are really informed and are dialed in so the most efficient, effective decisions can be made, hopefully resulting in some risk mitigation for all of our clients.
We’ve seen an uptick in questions from our employers’ clients, our clients in general, about whether or not they can use workforce analytics in the new administration. And I believe that there has been some confusion around that with different messaging and some of the different actions that the administration has taken, but I think they’ve made it abundantly clear that employers need to be making decisions that they can defend based upon individual’s qualifications, skills, and things of that nature, which employers we’ve been working with have been doing that. So, really, it’s nothing new in a way, it just might be a little bit different of a focus, and we feel like we’re uniquely positioned to help them.
I think, Tim, you’ve been working for a while at Ogletree to really build our innovation team out and be able to allow the lawyers here to really interact with some data professionals and other folks on an innovation team. Can you tell us a little bit about that journey, and what some of the services are, and how that complements this practice area that we’re kicking out?

Tim Fox: Yeah. I think a lot of people may be wondering why I’m on this call to announce the creation of a new practice group. Why do we have the director of innovation and analytics on it? And that’s really because this practice group came about as a partnership between the legal side of the house, Scott, your group and the attorneys, and the analytics side of the house, which is the team that I lead. And at Ogletree Deakins, we’ve really grown the analytics function at the firm. We’re up to almost a 40-person strong analytics team. We’ve got analysts; we’ve got statisticians; we’ve got economists; we’ve got data scientists; and we have really decades of experience, at this point, in performing analytics functions. And so, we provide support for the majority of the firm’s practice groups when it comes to analytical needs that they have for clients or for internal purposes.
And so, this really was a great opportunity for the two of us to partner and really think through from the ground up. What does this type of work look like? How can we provide the analysis for our clients that they need? But even more so, how can we be proactive in that analysis? And since we really are starting from the ground up, how can we really reimagine the current data and our current deliverables, and how other companies, how other firms have been doing this, but do it in a new way that provides value to our clients? And really, from those conversations and from conversations with clients, we really came up with what they needed and what we discovered, and that’s really what led to this practice group.
And we really found traditional compliance and reporting models. They weren’t really meeting our clients’ needs, and what they need, especially in more modern times, as you were talking about there. And so, we want to enable our clients to be able to make these data-driven decisions in almost real-time. When it comes to their workforce and their people analytics, they need to be able to move more quickly than, potentially, they have in the past, and we wanted to get them out of having to look at these big, lengthy reports. We wanted to start reimagining…how can we give them the data at their fingertips that they need? How can we make it be dynamic? We don’t want them to have to scroll through a couple of hundred rows and try and do a whole bunch of calculations. We should be able to do that work for them.
And so, one of our initial goals and our initial conversations was how do we get this into dashboards? How do we get this into data visualizations? How do we make it dynamic? And how do we present this data in a way that really tells the story that we need to tell to our clients and that our clients need to be able to report back up to their senior leadership and in other ways without having to do a whole bunch of transformation and other things with that? And so, I think that was one of the things that really differentiated this practice group from maybe some other ones that are out there, is just this partnership between analytics and attorneys from the very beginning to come up with what this should look like.

Scott Kelly: I know that you and I have worked together for a while now. You and your team have been supporting me. And when I was co-chair of our OFCCP practice group, which is now our Government Contracting and Compliance and Reporting Practice Group, and we’re still helping a lot of federal contractors and employers grapple with the changes that are coming through from the Trump administration, but I really think that our experience not only in our certain, I would say, subject matter areas, yours being with a legal eye towards a lot of this innovation, artificial intelligence, and things like that, coupled with our experience on the legal team dealing with systemic discrimination or individual claims of discrimination that we had by the Department of Labor. And we’ve got team members that have worked with the Equal Employment Opportunity Commission as well, investigations and other state agencies, as well as just dealing with litigation brought by private plaintiffs, whether that’s in an individual, or in systemic, or collective, or class action type situations.
We’ve been doing all of that work, and we’re really excited because this practice group allows for a lot of things, but primarily for us to continue to gain some efficiencies in the way that we’re approaching these issues for our clients and provide these practical solutions, which is really a hallmark. We hope that that’s what you experience when you’re working with us at Ogletree is really getting down to what does this mean for us, cutting through the noise, and getting to the legal recommendation. And I think I have seen a difference in my ability to interact with our clients based upon all of the work that you’ve done with this, and your team has done with the dynamic reporting, the dashboarding, and just the data visualization has really, I feel like, upped our game.
And what’s great about it is, while this…it’s dynamic, it’s professional, it’s super cutting-edge, and we’re able to do this in a pretty cost-effective manner just given the technology that’s involved. And so, we’re able to provide a lot of our services on some type of alternative fee arrangement. And so, I just want to encourage folks to investigate and not be scared that we’re providing practical advice, these great visual outputs, so you can actually action off, but they’re also cost-effective. And I know your team has been really integral to getting us to this point, so just a big thank you for that to you and all of the different team members.

Tim Fox: Yeah. I think, Scott, it’d be good to maybe talk in some more detail about some of these tools that we’ve built, but one thing I just want to piggyback on to your last point is we have…one of the beauties of Ogletree and our large analytic function that we have is we have in-house, the statisticians, the economists, the experts that you need, and we’ve been doing this type of analysis…or they’ve been doing this type of analysis for decades. And so, we have the technical skills in-house so that we can create these dashboards, we can make this data accessible, and we can automate a large portion of that to make things more efficient for our clients. And because we’re able to do it in-house, we generally can do it cheaper than having to go out and get a third party to do this.
And as this podcast shows, we have a partnership with our attorneys, and so these conversations can be much quicker, much easier, and all of that leads to just making the whole engagement generally be more efficient for our clients there. But I think we’ve probably been talking enough about what we’ve done. Let’s maybe talk about some of these particular products that our clients can expect to see.

Scott Kelly: Sure. So, big picture, we’ve got the ability to do assessments for employers that might have algorithms or artificial intelligence decision-making tools in their organization, ensuring that they comply with different Equal Employment Opportunity requirements or non-discrimination requirements, and make sure, frankly, that they’re working the best way they can to accomplish the business need that is out there without engaging in too much legal risk. Really, I think another area that we are really helping clients out with is litigation strategy and support. And so, that doesn’t mean, once the lawsuit is filed, you can get help from us, but really even well before that. In fact, a lot of times, you know that issues are percolating within your workforce, or you’re expecting to get that complaint or that charge of discrimination. And all of the work that you can do ahead of time, proactively looking at your data, figuring out if you have a problem, coming up with what your defenses might be, and hopefully, that we’re able to do that by looking at your own data, give you advice on that.
If you’re able to avoid the litigation, then it’s a victory for all. But even if the litigation ensues, helping that ahead of time. Knowing what your strategy might be allows the lawyers on our team to work even more efficiently and effectively to get out of that litigation in whatever way our clients are wanting us to, whether that’s trying that case and taking that appeal, all the way to where our client needs it to go, or if it’s looking at trying to conserve resources and figure out where the business is, and it might be, “Let’s try to get rid of this so we can move on focusing in on other ways to run our business.”
I know the other areas where we’re going to continue to see, I think, an uptick in a need from employers, it’s certainly one that is a focus of this administration right now, and that relates to Equal Employment Opportunity, what the rules of the role are there, and particularly what employers are doing to manage their workforce to help with if you have diversity, equity, and inclusion programs. I think one of the best ways to ensure that those are legally sufficient and to be designed within the legal parameters is making sure that you’re taking a look at your workforce or your people analytics and doing some privileged analysis of that, especially as you’re trying to solve whatever problem there happens to be.
Under Title VII, you can do some barrier analysis under that. We feel like those EEO analysis or barrier analysis are really important to do now, particularly for federal contractors and grant recipients, but quite frankly, for all employers with all of the executive orders that are out there in some of the new heightened requirements for those receiving federal funds to comply with all anti-discrimination laws. That seems like a fairly simple thing that employers should be prepared to do, but we all know all too well that, really, complying with all federal anti-discrimination laws and doing so under the penalty of potential False Claims Act liability is really up in the game. That’s the direction that we’re all going in with the new requirements of this administration, and we feel like doing some of this work under privilege just helps you develop a good-faith argument that you are complying with all these laws.
In addition to that, we’ve been doing government reporting for a long time. I’ve spent the better part of my career helping employers with affirmative action or federal contractor obligations, and that really has transitioned into helping out with talent acquisition, selection processes, and dealing with compensation. We still do a lot of that. All of that would be lawful, even under this administration. Whether it’s under an affirmative action program or doing that for different purposes, there are certainly some requirements to continue doing veteran and individual with disability affirmative action programs, which we’re doing for a lot of our clients, but we also help out with pay reporting for California, Illinois, and different states that require that, as well as other government reporting with VETS-4212 and the EEO-1 reports that we know everyone is working to get filed by the June deadline this year.
Of course, we spend a ton of time also in compensation in the pay equity space, and I’m really excited about some developments that we’ve made in those areas, especially with making our tools more robust and more dynamic to allow our clients to make better decisions and to see things with a clearer lens. And then, finally, dealing a lot with retention and reduction in force strategy, and analytics is another area that we are spending a lot of time, and anticipate we’ll be spending more as we’ve got some uncertainty in the economy, at least in the current. Hopefully, that doesn’t last long for anybody. More to come on all of those things.
As I sit here and describe each of them, Tim, I think it might be something that we should consider starting a series on under this Workforce Analytics and Compliance Practice Group, talking about some of these different capabilities and service offerings, and hearing not only from you and me, but also other members of the data analytic team and the legal team to hear how we’re partnering together on that. So, if you’ve heard it now, we’ve committed to it, so stay tuned. Those will be coming in short order. Tim, other things that you think our listeners would benefit from knowing about our new practice area?

Tim Fox: The only other thing, Scott, that I’d like to highlight, all this talk about being efficient with the work and being tech-focused and reimagining it. And in my mind, one of the other things that is under my purview at the firm is a lot of our generative AI work, and we have a lot of AI initiatives that are being leveraged by our Workforce Analytics and Compliance Group here to really drive home that efficiency. So, it’s not just the analytics that we’re making more efficient and more user-friendly, but also being able to leverage generative AI. And so I just want to talk, just really briefly, about some of the generative AI stuff that we’re doing at the firm and our generative AI journey here.
And this could be a whole separate podcast, that seems to be a theme now that we’re talking about, but just really briefly, we started our generative AI journey about two years ago at the firm, back in 2023, and we started like, I think, most firms, coming up with a strategy and governance and really getting that foundation in place, but then we really hit the ground running. And so, in the last 18 months, we’ve developed and deployed or licensed almost 20 generative AI solutions at the firm, and our focus with these generative AI solutions is how do we enable our attorneys to work smarter, to generate better output, to be more efficient in the work that they’re creating. I feel like efficiency is the buzzword, the theme of this podcast that we’re doing, but it’s really true. In this modern age, we need to think about how we can be as efficient as possible. And so, how are we leveraging generative AI to do that?
And so, I won’t go into too many details on that, but we do have a number of tools. So, for example, we’ve built out our own internal chatbot that we call ODGPT, and it’s in our secure environment. And so, we ensure that our client data is secure, our firm data never leaves our network, and we’re seeing the usage of this chatbot increase exponentially since we launched it over a year ago. And we hear from our attorneys the value that this provides in making them…both providing higher quality output, but also making them be more efficient. I hear almost every day from attorneys about how they don’t know how they were able to do this before and how it’s helped make them be much more efficient, but also be able to do things that they weren’t necessarily able to do before just because they didn’t have the time or the resources available. And all of those tools come together to help our attorneys just be able to be more productive, more efficient in their work there.
And so we’ve licensed a whole host of other tools. We’ve also built a number of tools as well to really focus in on specific use cases to say, “Okay, we want to create this document in a more efficient manner,” or, “We need to be able to generate these types of documents, but we don’t want to have to do it manually every single time.” And so, almost every day, I’ve been getting feedback from our attorneys just about how generative AI has improved their practice, or I get requests, “Can I get access to this tool because I want to be able to use it for that?”
And so, one thing I’m just thinking about, Scott, as I’m saying all this, with this new Workforce Analytics Compliance Group, you combine the enhanced analytics that we’ve built out for them with all the generative AI tools that they have available to them. We may have created the most tech-forward practice group in the country at this point because we just have so many tools, so much technology available. And so, I think it’s a really big opportunity for our clients and for others to really see the value that you can get when you combine analytics with technology and how that can really impact how we are practicing law here at the firm.

Scott Kelly: I agree, Tim, and that would have been a whole lot better answer to your first question as to why we are starting this practice group. So, maybe I need to reevaluate how we do these things going forward, but I’m hopeful that our clients are going to see the utility and really the value that our partnership between our lawyers, our data analytics team, and our innovation professionals is really going to provide for them. Stay tuned for more in this series on how Workforce Analytics and Compliance at Ogletree can assist you in helping to make some decisions within your workforce that will help reduce risk from a legal standpoint. We appreciate you joining us today, and hopefully look forward to partnering with you in the future in this area. Thank you.

Announcer: Thank you for joining us on the Ogletree Deakins podcast. You can subscribe to our podcasts on Apple Podcasts or through your favorite podcast service. Please consider rating and reviewing so that we may continue to provide the content that covers your needs. And remember, the information in this podcast is for informational purposes only and is not to be construed as legal advice.