Workforce Bulletin

On June 3, 2024, the New Jersey Division on Civil Rights proposed new regulations addressing Disparate Impact Discrimination, N.J.A.C. 13:16 (the Proposed Rules) under the New Jersey Law Against Discrimination (LAD).

The Proposed Rules clarify that in addition to the LAD’s prohibition against conduct that treats people differently because of their membership in a protected class, the law also prohibits practices and policies, in employment, housing, public accommodation, credit, and contracting, that have a disproportionately negative effect on members of a protected class, unless the practice or policy is necessary to achieve a “substantial, legitimate, nondiscriminatory interest and there is no less discriminatory, equally effective alternative that would achieve the same interest.”

The Proposed Rules, which largely codify state and federal case law, provide the legal standard and burdens of proof for determining whether a policy or practice has discriminatory effect, and give examples of practices or policies that may result in disparate impact on a protected class.

As featured in #WorkforceWednesday: This week, on our Spilling Secrets podcast series, we underscore the importance of e-discovery in trade secret and restrictive covenant cases and look at how employers can use electronically stored information (ESI) to protect proprietary information:

There’s a common misperception that ESI just means emails, but it’s much more than that. ESI encompasses anything in digital or electronic form. The departure of an employee is at the root of most trade secret and restrictive covenant litigation. Therefore, when an employee departs, the timely preservation of ESI must be a standard operating procedure.

In this episode of Spilling Secrets, Epstein Becker Green attorneys A. Millie Warner and Elizabeth S. Torkelsen and special guest James Vaughn, Managing Director of iDiscovery Solutions, discuss the complicated field of digital forensics and how employers can effectively manage ESI.

The Commodity Futures Trading Commission (“CFTC”) has now joined the Securities and Exchange Commission (“SEC”) in taking a stand against broad non-disclosure provisions in employment agreements. Last week, the CFTC announced a settlement with Trafigura Trading LLC, in which the company agreed to pay a $55 million penalty, in part because it required employees to sign agreements that impeded voluntary communications with the CFTC.

The Fourth Circuit recently reaffirmed that not all forms of opposition constitute protected activity. In Bills v. WVNH EMP, LLC, the Fourth Circuit unanimously affirmed the Southern District of West Virginia’s Order granting Defendants WVNH EMP, LLC, and Lanette Kuhnash’s (“Defendants”) motion for summary judgment on plaintiff Dorothy Bills’ (“Bills”) wrongful termination action under the West Virginia Human Rights Act (“WVHRA”). The sole issue was whether Bills engaged in protected activity under the WVHRA when she opposed sexual harassment by hitting a patient to stop him from groping her. Both courts agreed that Bills’ conduct was not protected by the WVHRA.

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.