Workforce Bulletin

On July 12, 2024, in a keenly awaited decision, the U.S. District Court for the Northern District of California determined that Workday, Inc. (“Workday”), a provider of AI-infused human resources (HR) software, can be held liable under Title VII of the Civil Rights Act of 1964 (Title VII), the Age Discrimination in Employment Act of 1967 (ADEA), and the Americans with Disabilities Act (ADA) (collectively the “Anti-Discrimination Laws”) as an agent of the corporate clients that hire Workday to screen and source candidates for employment by utilizing its AI-infused decision-making tools.  In noting that “[d]rawing an artificial distinction between software decisionmakers and human decisionmakers would potentially gut anti-discrimination laws in the modern era,” the court underscored the EEOC’s admonition, which we discussed in our previous post, that employers delegating their hiring protocols to AI must do so cognizant of the potential discriminatory impacts of such use.  See Opinion at 10.  Thus, the court allowed plaintiff Derek Mobley’s disparate impact claim to proceed, finding that Mobley’s allegations supported a plausible inference that Workday’s screening algorithms automatically rejected his applications based on protected characteristics rather than his qualifications.

Prior Proceedings

Mobley filed his initial complaint as a putative class action on February 21, 2023, alleging claims against Workday as an “employment agency” for disparate impact and intentional discrimination under the Anti-Discrimination Laws.  His complaint centered on his allegation that he applied for “at least 80-100 positions that upon information and belief use Workday, Inc. as a screening tool for talent acquisition and/or hiring” and “has been denied employment each and every time.”  Complaint at 10.

The California Division of Occupational Safety and Health (Cal/OSHA) has issued its anticipated model Workplace Violence Prevention Plan (for non-health care settings). As we previously noted here, SB 553 added  California Labor Code Section 6401.9, which requires virtually all California employers to have a written Workplace Violence Prevention Plan (WVPP) in place by July 1, 2024, either as a stand-alone section in their Injury and Illness Prevention Program (IIPP) or as a separate document.

Among other things, Cal/OSHA’s model WVPP provides some concrete examples of ...

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 December 8, 2023, the California Privacy Protection Agency (“CPPA”) Board (the “Board”) held a public meeting to discuss, among other things, regulations addressing: (1) cybersecurity audits; (2) risk assessments; and (3) automated decisionmaking technology (“ADMT”).  After years in the making, the December 8 Board meeting was another step towards the final rulemaking process for these regulations.  The Board’s discussion of the draft regulations revealed their broad implications for businesses covered by the California Consumer Privacy Act ...

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 ...

California businesses, including employers, that have not already complied with their statutory data privacy obligations under the California Consumer Privacy Act (CCPA) as amended by the California Privacy Rights Act (CPRA), including as to employee and job applicant personal information, should be taking all necessary steps to do so. See No More Exceptions: What to Do When the California Privacy Exemptions for Employee, Applicant and B2B Data Expire on January 1, 2023. As background, a covered business is one that “does business” in California, and either has annual gross revenues of $25 million, annually buys sells or shares personal information of 100,00 consumers or households, or derives 50 percent or more of its annual revenues from selling or sharing consumers’ personal information. It also applies, in certain circumstances, to entities that control or are controlled by a covered business or joint ventures. Covered businesses may be exempt from obligations under certain enumerated entity-level or information-level carve-outs.