Workforce Bulletin

On December 11, 2023, the City of San Francisco released the San Francisco Generative AI Guidelines (“Guidelines”).  The Guidelines set forth parameters for City employees, contractors, consultants, volunteers, and vendors who use generative artificial intelligence (AI) tools to perform work on behalf of the City.

Specifically, the Guidelines encourage City employees, contractors, consultants, volunteers, and vendors to use generative AI tools for purposes such as preparing initial drafts of documents, “translating” text into levels of formality or for a ...

Almost a decade ago, in September 2014, California was the first state in the nation to enact legislation prohibiting non-disparagement clauses that aimed to prevent consumers from writing negative reviews of a business. Popularly referred to as the “Yelp Bill,” AB 2365 was codified at California Civil Code Section 1670.8, which prohibits businesses from threatening or otherwise requiring consumers, in a contract or proposed contract for sale or lease of consumer goods, to waive their right to make any statement—positive or negative—regarding the business or ...

On October 7, 2023, California Governor Gavin Newsom vetoed Senate Bill 403 (“SB-403”), legislation that would have been the first state-wide ban on caste discrimination in the United States.  We previously reported on SB-403 here.

Governor Newsom released a veto message calling SB-403 “unnecessary.”  The message further explained his rationale that “discrimination based on caste is already prohibited” under California law, which “already prohibits discrimination based on sex, race, color, religion, ancestry, national origin, disability, gender identity ...

While recent public attention has largely focused on generative artificial intelligence (AI), the use of AI for recruitment and promotion screening in the employment context is already widespread.  It can help HR-professionals make sense of data as the job posting and application process is increasingly conducted online. According to a survey conducted by the Society for Human Resource Management (SHRM),[1] nearly one in four organizations use automation and/or AI to support HR-related activities, such as recruitment, hiring, and promotion decisions, and that number is posed ...

On September 5, 2023, the California legislature passed Senate Bill 403 (“SB-403”), paving the way for a state-wide ban on caste discrimination to be signed into law by Governor Gavin Newsom. 

SB-403 would amend the definition of “ancestry” under the California’s Unruh Civil Rights Act, Fair Employment and Housing Act, and certain provisions of the Education Code to include and define “caste.” According to the introductory language to the bill, rather than adding a new category of protected characteristics, the amendments “are declarative of and clarify ...

The five-member Board of the California Privacy Protection Agency (the “CPPA”) held a public meeting on September 8, 2023, to discuss a range of topics, most notably, draft regulations relating to risk assessments and cybersecurity audits. Once the regulations are finalized and approved after a formal rulemaking process, they will impose additional obligations on many businesses covered by the California Consumer Privacy Act, as amended by the California Privacy Rights Act (“CCPA”). The Board’s discussion of these draft regulations is instructive for ...

On August 9, 2023, the U.S. Equal Employment Opportunity Commission (“EEOC”) and iTutorGroup, Inc. and related companies (collectively, “iTutorGroup”) filed a joint notice of settlement  and a request for approval and execution of a consent decree, effectively settling claims that the EEOC brought last year against iTutorGroup regarding its application software.  The EEOC claimed in its lawsuit that iTutorGroup violated the Age Discrimination in Employment Act (“ADEA”) by programming its application software to automatically reject hundreds of female applicants age 55 or older and male applicants age 60 or older.

After releasing an initial two-page “fact sheet,” Congress publicly posted the bill text of the No Robot Bosses Act (the “Proposed Act”), detailing proposed federal guardrails for use of automated decision-making systems in the employment context. Robert Casey (D-PA), Brian Schatz (D-HI), John Fetterman (D-PA), and Bernie Sanders (I-VT) currently cosponsor the Proposed Act.

On July 20, 2023, U.S. Senators Bob Casey (D-PA) and Brian Schatz (D-HI) introduced the “No Robot Bosses Act.”  Other than bringing to mind a catchy title for a dystopic science fiction novel, the bill aims to regulate the use of “automated decision systems” throughout the employment life cycle and, as such, appears broader in scope than the New York City’s Local Law 144 of 2021, about which we have previously written, and which New York City recently began enforcing. Although the text of the proposed federal legislation has not yet been widely circulated, a two-page fact sheet released by the sponsoring Senators outlines the bill’s pertinent provisions regarding an employer’s use of automated decision systems affecting employees and would:

The California Office of Administrative Law has approved the California Division of Occupational Health and Safety’s (Cal/OSHA) COVID-19 Prevention Non-Emergency Regulations (Non-Emergency Regulations). As a result, on February 3, 2023, Cal/OSHA’s COVID-19 Prevention Emergency Temporary Standards (ETS) expired, and the Non-Emergency Regulations went into effect.

Although extending many of the ETS requirements, as we previously reported, the Non-Emergency Regulations contain some notable changes. A redline comparing the Non-Emergency Regulations to the ETS is available here. Some important changes include:

California is one of a growing list of states requiring employers to make certain pay transparency disclosures to employees and applicants. California employers already had an obligation to provide pay scales to job applicants upon request; however, as we previously reported, under SB 1162, employers must now disclose pay scales to current employees upon request, and employers with 15 or more employees must include pay scales in job postings.

In June 2022, the California Division of Occupational Health and Safety (“Cal/OSHA”) proposed initial non-emergency standards for COVID-19 prevention in the workplace that were intended to replace the current COVID Emergency Temporary Standards (“ETS”) set to expire on December 31, 2022.  Following oral and written comments received from the public, the Cal/OSHA Standards Board (the “Board”) made further updates to the proposed non-emergency standard as of December 2, 2022 (the “Anticipated New Regulation”).  It is expected that the Board will vote on the Anticipated New Regulation, with no further modifications, at its upcoming meeting on December 15, 2022.  The Anticipated New Regulation would then become effective from January 1, 2023 through December 31, 2024.

A California Superior Court judge has invalidated state legislation that required boards of publicly held corporations headquartered in California to include a minimum number of directors from underrepresented communities.  The court’s decision effectively strikes down Assembly Bill No. 979 (“AB 979”), a law enacted with the goal of increasing diversity on boards of directors, paving the way for a parallel outcome to a similar challenge of a statutory mandate for increased gender diversity on boards of directors.

Promotion of “Underrepresented Communities” Struck Down

On January 26, 2022, the City and County of San Francisco released an updated Health Order No. C19-07y (the “Updated Health Order”), which addresses a number of rules issued in an effort to combat continued spread of COVID-19, including changes in exemptions to the universal indoor mask mandate.  Specifically, effective February 1, 2022, the Updated Health Order renews a previously-suspended masking exemption for vaccinated workplaces, with a few significant changes.

First, under the revised mask exemption, only employees who are “Up to Date” on vaccination (see below for definition) may go unmasked in the workplace, assuming the other conditions for the exemption are met.  Other individuals must wear masks at all times, subject to limited exceptions (e.g., alone, while eating).  Further, consistent with the Cal/OSHA definition of an outbreak, this exemption only applies if there have been no outbreaks (currently defined as three or more COVID-19 cases in an “exposed group” within a 14-day period) in the past 30 days.

Counties across California are making a detour on the road to easing COVID-19 restrictions.

Los Angeles County  

On July 16, 2021, Los Angeles County issued an Order of the Health Officer (“the Order”) that requires all persons to wear face masks while in all indoor public settings, venues, gatherings, and businesses (i.e., office workplaces, retail, restaurants, theaters, meetings), with limited exceptions.  In indoor settings where there is close contact with unvaccinated individuals, the Order recommends that people consider wearing a higher level of protection, such as ...

As the first wave of COVID-19 vaccinations are being administered across the United States, employers are considering whether to mandate and/or administer the COVID-19 vaccine to employees.  On December 16, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Commission”) released updates to “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Technical Assistance Questions and Answers publication, addressing potential concerns with vaccine administration and anti-discrimination laws the EEOC ...

Seeking to prevent San Francisco’s return-to-work program from reigniting a surge of COVID-19 cases, the city’s Board of Supervisors (“Board”) has passed the “Healthy Buildings Ordinance” (“Ordinance”). This temporary emergency measure, which Mayor London Breed signed on July 17, 2020, and which is effective immediately, (i) establishes cleaning and disease prevention standards in tourist hotels and large commercial office buildings; (ii) mandates employee training on these standards and various protections employers must provide for workers as they ...

Since we last reported on the 2012 Equal Employment Opportunity Commission (“EEOC”) decision in Macy v. Holder,[1] the federal government has continued to extend protection under Title VII of the Civil Rights Act of 1964 (“Title VII”) to transgender employees.  In July 2014, President Obama issued Executive Order 13672, prohibiting federal contractors from discriminating against workers based on their sexual orientation or gender identity.  Two months later, in September 2014, the EEOC filed its first-ever lawsuits alleging sex discrimination against transgender ...