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Shortly after the DOL’s release of guidance on the use of AI in the workplace, a bipartisan working group from the U.S. Senate and the Biden administration have released additional guidance regarding the use of AI in the workplace.

Bipartisan Senate AI Working Group’s “road map” for establishing federal AI policies

On May 15, 2024, the Bipartisan Senate AI Working Group released a “road map” for establishing federal AI policies. The road map is titled “Driving U.S. Innovation in Artificial Intelligence: A Roadmap for Artificial Intelligence Policy in the United States Senate,” and outlines the opportunities and risks involved with AI development and implementation. Most notably, the road map highlights key policy priorities for AI, such as: promoting AI innovation, investing in research and development for AI, establishing training programs for AI in the workplace, developing and clarifying AI laws and guidelines, addressing intellectual property and privacy issues raised by AI and creating related protections for those affected, and integrating AI into already-existing laws.

The working group acknowledged that the increased use of AI in the workplace poses the risk of “hurting labor and the workforce” but also emphasized that AI has great potential for positive application. This dichotomy necessitates the advancement of additional “innovation” that will create “ways to minimize those liabilities.”Continue Reading Senate Working Group and Biden administration guidance on the use of AI in the workplace

On April 24, 2024, the U.S. Department of Labor (DOL) issued guidance on how employers should navigate the use of Artificial Intelligence (AI) in hiring and employment practices. The DOL emphasized that eliminating humans from the processes entirely could result in violation of federal employment laws. Although the guidance was addressed to federal contractors and is not binding, all private employers stand to benefit from pursuing compliance with the evolving expectations concerning use of AI in employment practices.

The guidance was issued by the DOL’s Office of Federal Contract Compliance Programs (OFCCP) in compliance with President Biden’s October 30, 2023 Executive Order 14110, which required the DOL to issue guidance for federal contractors on “nondiscrimination in hiring involving AI and other technology-based hiring systems.”

The guidance was issued in two parts: (1) FAQs regarding the use of AI in the Equal Employment Opportunity (EEO) context, and (2) a list of “Promising Practices” that serve as examples of best practices for mitigating the risks involved with implementing AI in employment practices. In short, the FAQs communicate that established non-discrimination principles apply to the use of AI, and the “Promising Practices” provide specific instruction on how to avoid violations when using AI in employment practices.Continue Reading DOL’s guidance on use of AI in hiring and employment

On February 27, 2024, U.S. District Judge James Wesley Hendrix of the Northern District of Texas, Lubbock Division blocked enforcement of the Pregnant Workers Fairness Act (PWFA) against the state of Texas and its divisions and agencies, finding passage of the PWFA violated the U.S. Constitution’s quorum requirement. Below we discuss the terms of the PWFA, its enactment, and the subsequent legal challenge.Continue Reading Texas federal court blocks enforcement of Pregnant Workers Fairness Act

In October 2023, the National Labor Relations Board issued a final rule that lowered the standard for companies to qualify as joint employers. You can read more about the rule here.

On March 8, 2024, a federal judge in Texas struck down the final rule. U.S. District Judge J. Campbell Barker granted summary judgment in favor of the business coalition that challenged the 2023 rule. In short, the 2023 rule established a two-step test which requires: (1) the entity qualify as a common-law employer of the workers in question, and if so (2) the entity have control over one or more essential terms and conditions of employment. The court agreed with the business coalition’s contention that “the second test is always met if the first test is met, so the rule’s joint employer inquiry has just one step for all practical purposes.” The court found that “if an entity exercises or has the power to exercise control (even indirect control) over at least one essential term, the entity is an employer, jointly with workers’ undisputed employer.” And because such a result “would treat virtually every entity that contracts for labor as a joint employer,” the Board’s 2023 final rule “exceeds the bounds of the common law and is thus contrary to law.”Continue Reading Texas judge vacates NLRB’s new joint employer rule

On February 8, 2024, the U.S. Supreme Court issued Murray v. UBS Securities LLC, No. 22-660, which addressed the proper framework for establishing a whistleblower claim under the Sarbanes-Oxley Act of 2002 (SOX). Under SOX, an employee who works for a covered company is protected from retaliation if they disclose information that the employee reasonably believes shows a violation of federal securities law, SEC rules, or any federal law related to fraud against shareholders. In Murray, the Court held that an employee is not required to prove that their employer acted with animus when it engaged in an adverse action against the employee.

In Murray, a research strategist at a securities firm voiced concerns to his supervisor about leaders of the firm’s trading desk purportedly engaging in unethical and illegal efforts to skew his independent reporting on commercial mortgage-backed securities. Despite receiving a strong performance review, the employee was subsequently terminated, which the employer alleged was a result of reduction in force. The employee then filed a SOX complaint with the Department of Labor (DOL) and, after the 180-day waiting period passed without a final decision from the DOL, subsequently filed suit in federal district court.Continue Reading Supreme Court eases employees’ burden to establish SOX retaliation claims and possibly other whistleblower claims

On October 26, 2023, the National Labor Relations Board issued a final rule that dramatically lowered the standard for companies to qualify as joint employers. You can read more about the rule here. In short, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more of the rule’s seven enumerated terms or conditions of employment is sufficient to establish joint employment. There is no doubt that implementation of the new rule will drastically expand when companies will be considered joint employers and create additional costs and obstacles for employers.Continue Reading Dueling challenges to NLRB’s new joint employer rule succeed in extending effective date of rule

In a series of press releases throughout September 2023, the Securities and Exchange Commission (SEC) announced enforcement orders against three separate companies for using employment agreements and separation agreements that violated the SEC’s whistleblower protection rule. The orders reflect the SEC’s increased scrutiny of employment agreements and separation agreements under the whistleblower protection rule.

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