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As detailed in the first installment of our multipart series, artificial intelligence (AI) and generative artificial intelligence (GAI) have had a sweeping impact on the U.S. workplace. As we will detail in this second installment, employers have implemented AI and GAI measures to assist with various aspects of the employment relationship, from recruiting through separation of employment. While these measures have assisted employers with efficiency and streamlining of certain HR operations, as discussed below, they potentially come with some pitfalls as well.Continue Reading How artificial intelligence is impacting the U.S. workplace (Part II)

On October 26, 2023, the National Labor Relations Board issued a final rule to replace and essentially reverse the joint employer test issued under the Trump Administration. The new test drastically lowers the standard for companies to qualify as joint employers, making them responsible for labor violations and saddling them with obligations with respect to union negotiations. The final rule, which rescinds and replaces the prior regulation, is set to take effect on December 26, 2023, on a prospective basis only.

The 2020 rule required that a company have “substantial direct and immediate control” over the “essential terms or conditions” of a worker’s employment in order to be held liable as a joint employer. In a major “about face”, the new rule provides that even reserved, unexercised, or indirect control, such as through an intermediary, over one or more terms or conditions of employment is sufficient to establish joint employment. The Board published an “exhaustive list” of seven categories of terms or conditions that it will consider “essential” for purposes of the joint employer inquiry:

  • Wages, benefits, and other compensation;
  • Hours of work and scheduling;
  • Assignment of duties to be performed;
  • Supervision of the performed duties;
  • Work rules and directions governing the manner, means, and methods of the performance of duties and the grounds for discipline;
  • Tenure of the employment, including hiring and discharge; and
  • Working conditions related to the safety and health of employees.

Continue Reading NLRB Issues Final Rule Replacing Joint Employer Test

It is indisputable that artificial intelligence (AI) has generated enormous buzz over the past several years. AI has had a substantial impact on various industries and facets of society – with no signs of slowing – and its potential to disrupt longstanding business mechanisms cannot be overstated.

Among the areas most impacted by AI is the workplace.  Indeed, AI and generative artificial intelligence (GAI) are readily used – and, as will be discussed, sometimes misused – every day by millions of U.S. employees. Companies utilize these sophisticated tools for a myriad of reasons, including to boost development, increase productivity, and stay ahead of the proverbial curve.

In this multipart series, we will address a host of issues associated with the interplay between AI and GAI, on the one hand, and the U.S. workplace, on the other hand. And in this particular article, we will break down what we specifically mean when referring to AI and GAI and, also, how federal, state, and local legislatures are responding to the rise in workplace-related AI issues. Future articles will address how AI and GAI are impacting the workplace as well as challenges employers face with the adoption of AI and GAI tools in the workplace.Continue Reading How artificial intelligence is impacting the U.S. workplace (Part I)

Effective March 13, 2024, the salary threshold for certain exemptions under Article 6 of the New York Labor Law (NYLL) will increase from $900 to $1,300 per week. By way of background, Article 6 of the NYLL sets forth employer obligations with respect to pay practices in New York, many of which afford certain wage…

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.

New…

Government agencies are integral to the enforcement of federal labor and employment laws and will be dramatically impacted by a government shutdown. Below is a synopsis of the impact on the main government agencies responsible for enforcing federal labor and employment laws—the U.S. Equal Employment Opportunity Commission (EEOC); the Department of Labor (DOL); and the…

The California Legislature had until September 14, 2023, to pass bills in the current Legislative Session before these bills are sent to Governor Newsom to either sign, approve without signing, or veto each bill by October 14, 2023. Several key bills relate specifically to employment law, including expansion of paid sick leave, CalWARN notice requirements…

On September 11, 2023, labor unions and the California restaurant industry reached an agreement that promises to significantly impact the fast-food chains throughout California. This deal involves, among other things, raising the minimum wage for fast food workers to $20 an hour and eliminating an industry-supported referendum scheduled for the 2024 ballot. The deal also…

As we previously reported here and here, effective September 17, 2023, New York State employers with four or more employees will be required to include the minimum and maximum pay range that they reasonably or in “good faith” expect to pay in any advertisement for a job, promotion, or transfer opportunity.

This disclosure…

Over the past decade-plus, New York lawmakers have passed several laws intended to combat perceived wage theft across the Empire State. On September 6, 2023, lawmakers in Albany continued this trend by passing a bill that codifies wage theft as criminal larceny.

Specifically, the bill adds a new subsection to the New York Penal Law’s…