Starting January 1, 2023, New York City employers that utilize artificial intelligence (“AI”) decision-making tools in their hiring practices will need to provide notice to applicants of the technology and conduct independent bias audits to ensure that these tools do not have a discriminatory impact on candidates. This new law, which is aimed at eliminating bias in automated employment decisions, is the first of its type in the United States.
The New York City Department of Consumer and Worker Protection (“DCWP”) has issued proposed regulations in connection with the law, and the DCWP will be holding a public forum to discuss the proposed regulations on October 24, 2022.
Employers and employment agencies should not wait until the regulations are finalized to develop a catalog of AI-driven tools they use for assisting in hiring and promotion decisions and working with vendors and technology stakeholders to develop the means for independent audits that are sufficiently linked to the jobs and job classes for which the organization anticipates hiring.
To read the full client alert, please visit our website.
Florida’s Individual Freedom Act (“IFA”), also referred to as the “Stop W.O.K.E. Act,” went into effect July 1, 2022, and, among other things, amended the state’s Civil Right Act of 1992 to make it unlawful for an employer to require its employees to attend mandatory trainings or instruction that “espouses or promotes” any of the following eight prohibited concepts:
That members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously
An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin
Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin
An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin
An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion
An individual, by virtue of his or her race, color, sex, or national origin, bears personal responsibility for and must feel guilt, anguish, or other forms of psychological distress because of actions, in which the individual played no part, committed in the past by other members of the same race, color, sex, or national origin
Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.
California is infamous for its hostility towards employers. On May 23, the California Supreme Court continued on its unwavering mission to solidify that well-earned reputation by issuing a 45-page decision in Naranjo et al. v. Spectrum Security Services, Inc., a case we have been closely monitoring at Blank Rome.
For context, the failure to pay wages in California triggers not only an award of those unpaid wages, but potentially steep and costly statutory and civil penalties as well, including so-called: (1) “waiting time penalties”—up to 30 days’ wages for former employees; and (2) “wage statement penalties” when the unpaid wages render the employee’s pay stub inaccurate. Wage statement penalties start at $50 for the first violation and rise to $100 for subsequent violations. When claims are brought on a classwide basis, these penalties can become astronomical, as they are all assessed on a per-employee, per-pay-period basis.
As previewed in our April 5, 2022, client alert (New York Employers, Take Note! Two New Laws Effective in May | Blank Rome LLP), New York City has rolled back to November 1, 2022, the effective date of its amendment to the New York City Human Rights Law (“NYCHRL”) that will require the City’s private employers to provide a minimum and maximum salary range for jobs when advertising employment opportunities.
The City delayed the effective date in order to give employers a six-month extension of time to come into compliance. The amendment will require employers that are advertising job openings for positions performed in New York City to include the salary range (both a minimum and maximum amount) being offered for the position in the advertisement.
New York businesses face not one, but two new laws which significantly impact employers and take effect next month. The first requires employers in New York City to provide salary ranges when advertising employment opportunities (effective May 15, 2022). The second mandates that New York employers provide prior notice and posting if they intend to monitor employee telephone, e-mail, or Internet usage (effective May 7, 2022). Read below for important summaries of the new laws and their impact on your business.
In a much-anticipated decision, the United States Supreme Court has blocked the Occupational Safety and Health Administration’s (“OSHA”) “vaccinate or test” Emergency Temporary Standard (“ETS”). The Court’s January 13, 2022, decision means that the ETS is stayed pending a hearing on the merits of the challenges to its validity. However, in practical terms, it is likely a death-knell for the ETS, which was set to expire in May 2022.
The Court’s per curiam opinion, written on behalf of the six conservative-leaning justices, held that the ETS exceeded OSHA’s statutory power because it sought to broadly regulate “public health” and was not directed specifically at workplace safety. The Court explained: “It is telling that OSHA, in its half century of existence, has never before adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace.”
In a concurring opinion joined by Justices Thomas and Alito, Justice Gorsuch elaborated that the “major questions doctrine” requires Congress to delegate clearly and specifically to an agency the authority to mandate Covid-19 vaccination or testing. Absent a clear and specific delegation, the Constitution reserves that power to “the states and Congress, not OSHA.”
The Court’s three liberal-leaning justices dissented. The dissenting opinion, co-authored by Justices Breyer, Sotomayor, and Kagan, asserted that the ETS fell squarely within OSHA’s emergency power because it was necessary to “protect employees” from a “grave danger” to workplace safety. The dissent argued further that, even if the merits of the ETS were reasonably in dispute, a stay would still be inappropriate because the “public interest” and “balance of harms” supported allowing the ETS to remain in effect. In conclusion, the dissent accused the majority’s decision of “undercut[ting] the capacity of the responsible federal officials, acting well within the scope of their authority, to protect American workers from grave danger.”
A final note: While fatal to the ETS, the Court’s decision likely is not the final word on broad workplace safety responses to the Covid-19 pandemic. Now that OSHA has been blocked from taking action, it is reasonable to expect that some state workplace safety agencies will become more active in adopting their own measures aimed at Covid-19 safety in the workplace. Stay tuned for more on the development of any new state-level rules and also on what happens with the ETS as it heads back to the United States Court of Appeals for the Sixth Circuit.
On Friday, January 7, 2022, the United States Supreme Court held oral argument on the Occupational Safety and Health Administration’s (“OSHA”) much-litigated “vaccinate or test” Emergency Temporary Standard (“ETS”). Absent action by the Court, compliance with the ETS is set to commence today, Monday, January 10, though OSHA has said it will not issue citations to employers who have made a good faith attempt to comply with the testing requirements. The Court is expected to issue a decision promptly.
The argument was originally scheduled for one hour but ran nearly two hours due to extensive questioning by the justices. The Court’s six conservative-leaning justices all appeared skeptical of the enforceability of the ETS, but their questions suggested a divide in the legal basis for their views. Justices Thomas, Alito, and Gorsuch’s questioning suggested that they viewed the mandate as clearly outside OSHA’s authority to regulate workplace safety. Justices Roberts, Kavanaugh, and Barrett suggested a narrower view in their questioning, indicating that they may see OSHA as having the authority to impose a narrower emergency mandate targeted at specific fields or industries that present unique safety risks. Justices Roberts, Kavanaugh, and Barrett also suggested that only Congress has the power to impose a broad federal vaccine mandate (like the current ETS) and that in the absence of congressional action, the power to impose an economy-wide mandate was reserved to the states. The Court’s liberal-leaning justices—Justices Breyer, Sotomayor, and Kagan—all expressed strong support for the ETS in their questioning.
During questioning, Justice Alito asked the Solicitor General (representing the federal government) if there was any objection to a brief administrative stay of the January 10 compliance deadline pending the Court’s decision on the appeal. The Solicitor General largely conceded that a brief stay would be appropriate.
We will post a prompt update when the Court issues a decision on the ETS appeal. In the meantime, covered employers should continue to proceed with good faith preparations to implement the requirements of the ETS.
New York City has issued the much-awaited guidance on its private-sector vaccine mandate. The mandate, which is scheduled to take effect on December 27, 2021, will apply to roughly 184,000 businesses in the City. There are several key takeaways from the guidance and accompanying FAQs.
Which Businesses Are Covered?
Any business that maintains or operates a workplace in New York City is covered. A “workplace” is any place where work is performed in the presence of another worker, or a member of the public.
What Must Employers Do to Comply?
Subject to the accommodation process described below, by December 27, 2021, employers must collect acceptable proof of at least one dose of COVID-19 vaccination from all individuals who perform services at New York City workplaces operated by the employer. This includes on-site independent contractors and nonresidents who work at New York City workplaces. (Workers who show proof of a first shot of a two-shot vaccine need to get their second dose within 45 days.)
The forms of acceptable proof have not changed. They include: a CDC COVID-19 vaccination record card or other official immunization record, New York City COVID Safe App showing a vaccination record, a New York State Excelsior Pass/Excelsior Pass Plus, or a CLEAR Health Pass. Accordingly, employers do not need to collect additional information from employees who have already provided proof of vaccination.
As reported by the Pennsylvania Chamber of Business and Industry (see here), the planned significant increases to the salary threshold for exempt executive, administrative, and professional (“EAP”) employees under the Pennsylvania Minimum Wage Act (“PMWA”) will not go into place this fall.
As you may recall (see our blog post here), last October, the Pennsylvania Department of Labor and Industry (“DOLI”) finalized new regulations that set in motion periodic increases in the EAP exempt salary threshold under the PMWA. The goal was to dramatically expand the range of employees eligible for overtime pay. Those PA increases were designed to surpass the current federal salary threshold under the Fair Labor Standards Act (“FLSA”) and looked like this:
$35,568 ($684 per week) effective 10/3/2020 (which matched the FLSA threshold that was effective 1/1/2020—see our prior post here);
$40,560 ($780 per week) to be effective 10/3/2021;
$45,500 ($875 per week) to be effective 10/3/2022; and
On 10/3/2023, and every third year thereafter, the minimum salary will experience automatic adjustments.
However, as part of an overall budget deal reached last week between Governor Wolf and the Republican-controlled legislature, the DOLI regulations will be repealed. This “gift” comes through a one-sentence provision in the budget-related legislation.
As a result, at least for now, the PA salary threshold will not increase in October (or in the foreseeable future) and will continue to match the current threshold under the FLSA … unless/until the Biden administration’s Department of Labor follows through on its latest plan to further increase the federal salary level for the EAP exemptions.
Stay tuned—you just never know what the government might do, especially in the budget process.
The U.S. Equal Employment Opportunity Commission (“EEOC”) released updated guidance on December 16, 2020, to address the impact of COVID-19 vaccinations in the workplace. The guidance indicates that employers may require COVID-19 vaccinations for workers to be able to return to the workplace as long as employers comply with Title VII of the Civil Rights Act (“Title VII”), the Americans with Disabilities Act (“ADA”), and Title II of the Genetic Information Nondiscrimination Act (“GINA”).
Here are a few highlights:
Administration of the vaccine by the employer (or a contractor on the employer’s behalf) is not a medical examination and does not implicate the ADA, GINA, or Title VII. Employers must ensure, however, that all vaccine pre-screening questions are “job-related and consistent with business necessity” and do not request genetic information.
Asking or requiring employees to show proof of receipt of a COVID-19 vaccination is not a disability-related inquiry under the ADA because it is not likely to reveal information about any disability, nor does it impact GINA. Subsequent questions, such as “why did an employee not receive the vaccine,” would implicate concerns under the ADA and GINA, however. Employers must therefore also ensure that follow-up questions are “job-related and consistent with business necessity” and avoid asking questions about genetic information or family medical history.
Employers must provide reasonable accommodations, subject to “undue hardship” analysis, to workers who are unable to get the vaccine because of a disability (under the ADA) or sincerely held religious beliefs (under Title VII).
An employer may physically preclude an employee who cannot be vaccinated from entering the workplace when that employee poses a “direct threat to the health or safety of individuals in the workplace,” which threat cannot be eliminated by a reasonable accommodation. However, an employer may not automatically terminate the employment of that worker. Employers must consider what protections the employee may have under relevant EEO laws or other federal, state, and local authorities.
We encourage employers working on their return-to-work strategies to review the EEOC guidance as they consider how and whether to implement COVID-19 vaccination requirements. If you have any questions or need guidance specific to your workplace, please do not hesitate to contact Blank Rome for more information.