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Claire Throckmorton

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Employers routinely strive to find innovative ways to recruit, retain, and manage top talent. Proponents of artificial intelligence (AI) advocate that it can be a powerful tool for such purposes given that AI can be used to collect and analyze massive amounts of candidate and employee data in many different ways and in a fraction of the time needed by human analysts. By way of example, AI may be used in the hiring process to analyze qualifications or mine data from resumes and other submissions by candidates. It also may be used to assess an individual’s perceived fitness for a particular job, including their personality, aptitude, cognitive skills, or other perceived qualities, based on their performance during screening tests, video interviews, or other virtual interactions. AI also may be used to monitor and analyze employees’ working patterns or productivity based on measurable output, including even the most fundamental of activities such as keystrokes. Employers might presume that, because this is data-driven, there is no risk of unlawful discrimination or bias.…

Continue Reading EEOC issues guidance on employer use of AI under the ADA

On February 22, 2021, New Jersey Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) and other related bills into law which legalize and regulate recreational cannabis use and possession for adults over the age of 21.  With the enactment of NJCREAMMA, New Jersey now prohibits employers from discriminating against employees for off-duty recreational marijuana use (or decision not to use).  These requirements are effective immediately.

Prior to the enactment of NJCREAMMA, New Jersey employers were prohibited from discriminating against individuals who are certified to use medical marijuana and required to engage in the interactive process with employees who request accommodations for medical marijuana use.  NJCREAMMA extends the discrimination prohibitions to recreational marijuana users and prohibits employers from refusing to hire, discharging, or taking “any adverse action against an employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.”  In addition, these prohibitions extend to positive drug tests where solely cannabinoid metabolites are present in the employee’s system.
Continue Reading New Jersey legalizes recreational marijuana use: What this means for employers

The EEO-1 Report is a compliance survey mandated by federal law. Generally, employers with 100 or more employees and federal government prime contractors and first-tier subcontractors with 50 or more employees and federal contracts worth at least $50,000 are required to submit EEO-1 Reports to the U.S. Equal Employment Opportunity Commission (EEOC) annually.

A brief history on the expansion of the EEO-1 data reporting requirements

Historically, the EEO-1 Report has required employers to disclose certain demographic data on their workforce population based on job category, gender, race and ethnicity.

In 2016, the Obama Administration announced a plan to expand the EEO-1 data reporting requirements such that employers would be required to report two sets of data: “Component 1” data and “Component 2” data. Component 1 data includes the customary gender, race and ethnicity data historically required in the EEO-1 Report. Component 2 data, which was not previously required in the EEO-1 Report, includes an aggregate of all employees’ W-2 earnings and hours worked based on job category, salary range, gender, race and ethnicity.

The new pay data reporting requirements were scheduled for implementation during the 2017 EEO-1 reporting cycle, for which the filing deadline was March 31, 2018. However, in August 2017, the Trump Administration indefinitely froze the revised EEO-1 Report to reevaluate the need and purpose of the new reporting requirements.…

Continue Reading EEOC updates its guidance on employers’ duty to report EEO-1 pay data by September 30, 2019