Tech industry watchdog challenges AI-driven recruiting practices

As technology continues to rapidly evolve, so do hiring and recruiting practices. A number of start-up companies have emerged in recent years offering employers the ability to use artificial intelligence (AI) to screen job candidates and determine their employability. These AI-driven recruiting practices, such as those that use facial and voice recognition technologies, are touted as a means of lowering recruiting costs and eliminating bias in the hiring process. But there is growing concern that the use of AI may threaten a job candidate’s privacy and might result in the inadvertent perpetuation of discriminatory hiring practices.

These concerns and others were raised in a recent complaint filed with the Federal Trade Commission (FTC), urging an investigation into one such company’s business practices. The complaint was filed by the Electronic Privacy Information Center (EPIC), a public interest watchdog located in Washington, D.C. EPIC’s complaint challenges the AI-driven recruiting solutions developed and sold by a company called HireVue, which currently has more than 700 corporate customers that use its technology as part of their hiring process. Continue Reading

New York state’s reproductive health law necessitates handbook revisions

New York state employers, it’s time to dust off and update your employee handbooks again.  Earlier this month, Governor Andrew Cuomo signed a law that protects employees against discrimination on the basis of their reproductive health decision-making. The law, which mirrors a recent bill passed by New York City lawmakers, also requires that employers in the state provide notice of the law in their employee handbooks/manuals.

Under the new law, employers are, effective immediately, prohibited from:

  • accessing personal information about an employee’s (or their dependents’) reproductive health decisions, unless the employer receives prior, informed, and written consent;
  • discriminating or taking retaliatory action against an employee on the basis of the employee’s (or their dependents’) reproductive health decision-making; or
  • requiring an employee to sign a waiver to deny them the right to make their own reproductive health decisions.

The law defines reproductive health decisions as including, but not limited to, the decision to use or access a particular drug, device, or medical service.

Perhaps most important in the near term, the law requires that all New York state employers that furnish an employee handbook/manual to their employees, add a new section to such handbook/manual that provides employees with notice of their rights and remedies under the new law. This requires every employer in the Empire state, therefore, to take immediate action. If you have any questions or concerns about the new amendment, or how it affects your company, Reed Smith’s experienced Labor & Employment Group is ready to speak with you. For more information regarding this law, please contact your Reed Smith attorney.

Pennsylvania wage rules: Changes on the horizon

Shortly after the U.S. Department of Labor’s new overtime rule was finalized, the Pennsylvania Department of Labor and Industry (L&I) followed suit and finalized its own proposed overtime rule. Regulation 12-106 was set to exceed the new federal rule regarding the minimum salary to be paid to employees who are exempt from overtime. The new federal threshold of $684 per week ($35,568 per year) goes into effect on January 1, 2020. Regulation 12-106 would have phased Pennsylvanians in executive, administrative, and professional roles into a new minimum salary requirement of $875 per week ($45,500 per year) by 2022. The threshold would have adjusted automatically every three years beginning in 2023.

The Independent Regulatory Review Commission was set to consider Regulation 12-206 yesterday, November 21, 2019. But about an hour before the meeting was to begin, the regulation was withdrawn. L&I advised in a brief letter that “legislation could be passed before the end of this year that would invalidate portions of this regulation.”

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California extends deadline to file employment claims from one year to three years

Beginning January 1, 2020, an individual’s deadline to exhaust their administrative remedies through advancing a charge of unlawful workplace discrimination, harassment, and retaliation with the California Department of Fair Housing and Employment (DFEH) will be extended from one year to three years.

Assembly Bill 9, known as the Stop Harassment and Reporting Extension (SHARE) Act, is a significant departure from California’s long-standing one-year statute of limitations and from the six-month statute of limitations period under federal law for claims made to the Employee Equal Opportunity Commission. In California, employment claims brought under the Fair Employment and Housing Act cannot be directly filed in court. Individuals must first exhaust their administrative remedies by filing a charge with the DFEH. Once the DFEH receives the charge, it can investigate the claim. If it determines that a violation of the FEHA has occurred, the DFEH may use its discretionary power to file a civil action on behalf of the aggrieved individual. If the DFEH is unable to determine whether a violation took place, or if an individual asks for an immediate right-to-sue letter (which is commonly the case, especially if the individual is represented by counsel), the DFEH closes its investigation and the individual has one year from the date of receipt of the right-to-sue letter to file a civil action against the employer. Continue Reading

The future is now: Employer use of present-day medical information to predict future disabilities does not violate the ADA

The sci-fi film Minority Report envisions the year 2054, when the U.S. government uses predictive foreknowledge of “precogs” to apprehend criminals before their crimes are ever committed, thereby reducing future harm. More than 15 years after the popular film was made, the Seventh Circuit’s decision in Shell v. Burlington Northern Santa Fe Railway Company arrives at a similar result. The Shell court held that employers do not violate the ADA when they use current predictors of future disabilities, such as obesity, to reject candidates for employment, thereby reducing future costs. This ground-breaking opinion opens the door for employer use of predictive tools such as genetic testing and AI algorithms to discern which applicants or employees are most likely to develop future (costly) disabilities, and exclude them from the workforce before disabilities arise, and before legally protected status attaches. In other words, the opinion allows employers to exclude someone based on a status of “likely to develop a future disability,” without violating the ADA, because the individual does not currently have the status of “disabled.”

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New data security law has broad implications for New York employers

On October 23, 2019, New York state’s Stop Hacks and Improve Electronic Data Security (SHIELD) Act went into effect. The law broadens the state’s existing breach notification laws and imposes new security obligations for companies doing business in New York, including an expanded focus on how companies handle biometric data. The SHIELD Act also applies to employee information, as long as there is at least one employee in New York state, regardless of the size or location of the company. As such, the law will have a significant impact on businesses across the country that have private information about consumers and employees based in New York.

For more information about the ramifications of the SHIELD Act, visit ReedSmith.com

When do beliefs attract legal protection at work?

An employer is likely to find a wide variety of beliefs held by its employees. We’re all aware that some people hold (and perhaps we share) firm beliefs as regards climate change, and there is certainly a growing trend towards a vegan lifestyle and beliefs. Others may hold beliefs in spiritualism, life after death, and the ability of mediums to contact the dead; a belief that poppies should be worn in early November; a belief that the 9/11 and 7/7 attacks were “false flag” operations; a belief that lying is always wrong; a belief in the “higher purpose” of public service broadcasting; and beliefs about anti-fox hunting (these are all examples of beliefs that have been considered by the Employment Tribunals).

So when do beliefs attract legal protection at work?

Under the Equality Act, it is unlawful to discriminate, harass, or victimise workers or job applicants on the grounds of their religion, religious belief, or philosophical belief. “Religion or belief” is a protected characteristic under the Equality Act (like age, sex, sexual orientation, race, and disability, for example). “Religion” means any religion, and a reference to religion includes a reference to a lack of religion. “Belief” means any religious or philosophical belief, and a reference to belief includes a reference to a lack of belief.

Employers may feel fairly confident in identifying a religious belief, but it is clear from case law that a philosophical belief is much more difficult to identify, and this makes it a particularly tricky area for employers. The Equality and Human Rights Commission’s (EHRC) guide to religion or belief states “an employer should only question a belief in the most exceptional circumstances where, for example, it is very obscure, appears to be objectively unreasonable, or the sincerity of the belief of an employee is genuinely in doubt”. Employers should therefore consider very carefully how to respond to employees’ beliefs.

In 2009, an Employment Appeal Tribunal decision defined the criteria of a philosophical belief. It must:

  • be genuinely held
  • be a belief and not an opinion or viewpoint, based on the present state of information available
  • be a belief as to a weighty and substantial aspect of human life and behaviour
  • attain a certain level of cogency, seriousness, cohesion, and importance
  • be worthy of respect in a democratic society, compatible with human dignity, and not conflict with the fundamental rights of others

Discrimination against a person because of their belief may be direct (such as when an individual is treated less favourably) or indirect (such as when a policy, practice, or procedure disadvantages those who hold a belief or religion). Discrimination may also take the form of harassment or victimisation. Harassment occurs when an individual experiences unwanted conduct relating to his or her belief, and victimisation involves the unfair treatment of a worker who has made or supported a complaint about discrimination.

Employees are equally protected from discrimination because they are not part of a religion or belief system.

“Philosophical belief” for the purpose of discrimination protection has been held to include beliefs in climate change, in anti-fox hunting, in the “higher purpose” of public service broadcasting, in public service for the common good, that lying is always wrong, in spiritualism, life after death, and the ability of mediums to contact the dead, and in Scottish independence.

However, as demonstrated by a recent, perhaps surprising, decision on whether vegetarianism may be a protected belief (the Employment Tribunal held that it was not, because it concerns a lifestyle choice rather than being about human life and behaviour), it is very difficult to predict which philosophical beliefs will qualify, and employers should exercise caution in dismissing any beliefs that are not on the above list. The key to protection under the Equality Act is the philosophical belief itself – with the behaviours being the consequence of that belief. In the case about vegetarianism, the Employment Tribunal stated that not eating meat is only the consequence of being a vegetarian, not the belief system behind it. The Tribunal in that case drew a distinction with veganism, where there is a clear cogency and cohesion in vegan belief. Last week, a Tribunal was due to hear the case of an ethical vegan, Mr Casamitjiana, who claims he was dismissed by the League Against Cruel Sports for disclosing that it was investing pension funds into firms involved with testing on animals. The hearing was postponed, so we shall have to wait a little bit longer to hear the Tribunal’s decision in that case.

Employers should be mindful to respect and respond sensitively to employees’ genuinely held beliefs. Dietary choices, for example, should be catered for, and employers should ensure that any negative behaviours towards staff for holding beliefs capable of protection are dealt with under their disciplinary policy where appropriate. Employers should also ensure they regularly update their relevant policies as well as the training of managers and other relevant staff members.

German federal labor court gives further clarifications on controversial aspects with regard to vacation entitlements

Under German law, the (mostly mandatory) provisions of the German Federal Vacation Act (Bundesurlaubsgesetz – BUrlG) constitute the basic legal framework for vacation entitlements. The Federal Vacation Act itself has not been changed for years. However, there are still a number of unanswered questions and controversial debates regarding vacation claims in Germany.

In 2019, the German Federal Labor Court (Bundesarbeitsgericht – BAG) had to deal on a regular basis with questions concerning vacation entitlements. Among others, several of the court’s decisions provided important clarifications about vacation entitlements during parental leave. At least in this respect, things are now somewhat clearer for employers.

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Gov. Newsom signs bill to expand CFRA rights

On October 10, 2019, California Governor Gavin Newsom officially signed a bill expanding protected leave rights under the California Family Rights Act (CFRA) to flight crew employees. We covered this issue in more detail here. The new law will allow flight crew employees to be eligible for CFRA protected leave with certain conditions.

Maryland clamps down on non-competes

Maryland employers who wish to require their employees to sign a non-competition agreement beware. Effective October 1, 2019, non-competition agreements under Maryland law are valid only if the employee earns more than $15/hour or $31,200 annually. (See SB 328.) For employees who earn equal to or less than that, the agreement will be considered in violation of public policy and consequently, void.

The new Maryland law is not unique. In June, 2019, Maine enacted lawmaking non-competition agreements unenforceable for any employee earning less than 400% of the federal poverty line – nearly $50,000 in 2019. Similarly, in July, 2019, New Hampshire enacted the same restriction for employees that make equal or less than double the federal minimum wage ($14.50/hour).

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