Workforce Bulletin

Today, we’re bringing you a special breaking news episode on the recent U.S. Supreme Court (SCOTUS) ruling in the Starbucks v. McKinney case, which effectively raises the standard for federal courts issuing injunctions under section 10(j) of the National Labor Relations Act.

This ruling is a significant blow to the National Labor Relations Board’s enforcement priorities. In the video below, Epstein Becker Green attorney Steve Swirsky tells us more.

New York City employers, time is running out to update your bulletin boards. Local Law No. 161, which took effect January 2, 2024, requires New York City employers to display and distribute to each employee a multilingual “Know Your Rights at Work” poster (the “Poster”) by no later than July 1, 2024. The Poster’s main feature – a QR code – directs employees to the Workers’ Bill of Rights website created by the New York City Department of Consumer and Worker Protection (DCWP) to summarize protections available under federal, state, and local laws.

Specifically, Local Law No. 161 requires New York City employers to:

As featured in #WorkforceWednesday®: This week, we’re recapping recent U.S. Supreme Court (SCOTUS) decisions and their impact on employers across the country.

The Department of Labor's (DOL) May 16, 2024 guidance, Artificial Intelligence and Worker Well-Being: Principles for Developers and Employers, published in response to the mandates of Executive Order 14110 (EO 14110) (Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence), weighs the benefits and risks of an AI-augmented workplace and establishes Principles to follow that endeavor to ensure the responsible and transparent use of AI. The DOL’s publication of these Principles follows in the footsteps of the EEOC and the OFCCP’s recent guidance on AI in the workplace and mirrors, in significant respects, the letter and spirit of their pronouncements. 

While not “exhaustive,” the Principles” should be considered during the whole lifecycle of AI” from ”design to development, testing, training, deployment and use, oversight, and auditing.”  Although the DOL intends the Principles to apply to all business sectors, the guidance notes that not all Principles will apply to the same extent in every industry or workplace, and thus should be reviewed and customized based on organizational context and input from workers.

While not defined in the Principles, EO 14110 defines artificial intelligence as set forth in 15 U.S.C. 9401(3): “A machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations, or decisions influencing real or virtual environments.  Artificial intelligence systems use machine- and human-based inputs to perceive real and virtual environments; abstract such perceptions into models through analysis in an automated manner; and use model inference to formulate options for information or action.” 

As featured in #WorkforceWednesday: This week, we’re focused on the Equal Employment Opportunity Commission’s (EEOC’s) filing requirements for the EEO-1 Component 1 data:

The EEOC requires private employers with 100 or more employees, as well as certain federal contractors, to submit EEO-1 reports annually. Yesterday, June 4, 2024, was the deadline for employers to file EEO-1 Component 1 data.

Epstein Becker Green attorneys Dean R. Singewald II and Marissa Vitolo discuss what to do if you missed it, as well as coming changes and how to prepare for next year.

In line with the mandates of President Biden’s Executive Order 14110, entitled “The Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence,” and its call for a coordinated U.S. government approach to ensure responsible and safe development and use of artificial intelligence (AI) systems, the Office of Federal Contract Compliance Programs (OFCCP) has published a Guide addressing federal contractors’ use of AI in the context of Equal Employment Opportunity (EEO).

As discussed below, the Guide comprises a set of common questions and answers about the intersection of AI and EEO, as well as so-called “promising practices” federal contractors should consider implementing in the development and deployment of AI in the EEO context. In addition, the new OFCCP “landing page” in which the new Guide appears includes a Joint Statement signed by nine other federal agencies and the OFCCP articulating their joint commitment to protect the public from unlawful bias in the use of AI and automated systems.

In response to President Biden’s Executive Order 14110 calling for a coordinated U.S. government approach to ensuring the responsible and safe development and use of AI, the U.S. Department of Labor Wage and Hour Division (WHD) issued Field Assistance Bulletin No. 2024-1 (the “Bulletin”). This Bulletin, published on April 29, 2024, provides guidance on the application of the Fair Labor Standards Act (FLSA) and other federal labor standards in the context of increasing use of artificial intelligence (AI) and automated systems in the workplace.

Importantly, reinforcing the DOL’s position expressed in the Joint Statement on Enforcement of Civil Rights, Fair Competition, Consumer Protection, and Equal Opportunity Laws in Automated Systems, the WHD confirms that the historical federal laws enforced by the WHD will continue to apply to new technological innovations, such as workplace AI.  The WHD also notes that, although AI and automated systems may streamline tasks for employers, improve workplace efficiency and safety, and enhance workforce accountability, implementation of such tools without responsible human oversight may pose potential compliance challenges.

The Bulletin discusses multiple ways in which AI interacts with the Fair Labor Standards Act (“FLSA”), the Family and Medical Leave Act (“FMLA”), the Providing Urgent Maternal Protections for Nursing Mothers Act (“PUMP Act”), and the Employee Polygraph Protection Act (“EPPA”). The Bulletin makes the following pronouncements regarding the potential compliance issues that may arise due to the use of AI to perform wage-and-hour tasks:

As featured in #WorkforceWednesday: This week, we’re highlighting recent updates across the state and federal employment landscapes, including the New Jersey Supreme Court’s non-disparagement ruling, the U.S. Department of Labor’s (DOL’s) new artificial intelligence (AI) guidelines, and the DOL’s restructuring of Occupational Safety and Health Administration’s (OSHA’s) regional operations.

On May 14, 2024, New Jersey Attorney General Matthew J. Platkin and the New Jersey Division on Civil Rights (“DCR”) released Guidance on Discrimination and Out-of-State Remote Workers (“the Guidance”), explaining the New Jersey Law Against Discrimination’s (NJLAD) application to remote employees. Noting the rise of telework following the COVID-19 pandemic, the Guidance states that the NJLAD is not limited to protecting only New Jersey-based employees but takes the position that it protects aggrieved employees of New Jersey employers “regardless of their ...

On May 17, 2024, Colorado Governor Jared Polis signed into law SB 24-205—concerning consumer protections in interactions with artificial intelligence systems—after the Senate passed the bill on May 3, and the House of Representatives passed the bill on May 8.  In a letter to the Colorado General Assembly, Governor Polis noted that he signed the bill into law with reservations, hoping to further the conversation on artificial intelligence (AI) and urging lawmakers to “significantly improve” on the law before it takes effect.

SB 24-205 will become effective on February 1 ...