The Impacts of Artificial Intelligence in the Workplace in 2023 and Beyond [Webinar Recording]

On Tuesday, November 21, 2023, Ashley D. Mitchell and Darius Rohani-Shukla presented a webinar regarding The Impacts of Artificial Intelligence in the Workplace in 2023 and Beyond.

In May 2022, the Equal Employment Opportunity Commission “EEOC” issued a Technical Assistance (“TA”) document entitled, “The Americans with Disabilities Act (“ADA”) and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” focused on providing “clarity to the public regarding existing requirements” under the ADA and agency policy. This is the first guidance document the EEOC has issued regarding the use of Artificial Intelligence (“AI”) in employment decision-making since announcing its Al Initiative in October 2021.

It is no secret that more employers have turned to AI to enhance their work processes over the years. An estimated 83% of employers have engaged AI or algorithmic tools to Continue reading

Happy Thanksgiving from Everyone at CMC!

With Gratitude

From Your Friends at Conn Maciel Carey

As we reflect on all that we are thankful for this Thanksgiving, we want to express our genuine appreciation for your continued support. It is clients like you who make it all worthwhile. Thank you for being a part of our CMC family! Wishing you a joyous and peaceful holiday.

[Webinar] The Impacts of Artificial Intelligence in the Workplace in 2023 and Beyond

On Tuesday, November 21, 2023, at 1 p.m. EST, join Ashley D. Mitchell and Darius Rohani-Shukla for a webinar regarding The Impacts of Artificial Intelligence in the Workplace in 2023 and Beyond.

In May 2022, the Equal Employment Opportunity Commission “EEOC” issued a Technical Assistance (“TA”) document entitled, “The Americans with Disabilities Act (“ADA”) and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees” focused on providing “clarity to the public regarding existing requirements” under the ADA and agency policy. This is the first guidance document the EEOC has issued regarding the use of Artificial Intelligence (“AI”) in employment decision-making since announcing its Al Initiative in October 2021.

It is no secret that more employers have turned to AI to enhance their work processes over the years. An estimated 83% of employers have engaged AI or algorithmic tools to screen or assess applicants and workers, and some have even adopted a broad framework applicable to everything from resume scanners and “virtual assistants” or chatbots to video interviewing software and testing software that assess personality, aptitude, skills and perceived “cultural fit.” However, if employers are not careful, these tools could result in disability discrimination violating the ADA.

The content of this presentation includes Continue reading

Ohio Becomes the 24th State to Legalize Recreational Marijuana

On November 7, 2023, Ohio voters passed a measure to legalize recreational marijuana. The state now joins 23 other states, two territories and the District of Columbia that have legalized marijuana for recreational use.

The approved ballot measure, commonly referred to as “Issue 2,” will allow adults over the age of 21 to buy, possess and grow marijuana as of December 7, 2023.  It is important to note that Issue 2 was a citizen-led initiative, which means lawmakers have the authority to change some of the language in the coming months.  Once finalized, the law will be captured in a new chapter of the Ohio Revised Code, Chapter 3780.

Ohio’s longstanding medical marijuana program will remain in effect.

What does this mean for the Ohio Employer?

The new law is not expected to significantly impact the workplace. Ohio employers are not required to permit or accommodate an employee’s use, possession, or distribution of recreational marijuana. Employers may still refuse to hire, discharge, discipline or otherwise take an adverse employment action against an individual because of that individual’s use, possession, or distribution of recreational marijuana. Employers may continue to establish and enforce drug testing policies, drug-free workplace policies, or zero-tolerance policies. Furthermore, if an employer terminates an employee because of that individual’s recreational marijuana use in violation of the employer’s policy, the employee will be considered to have been discharged for just cause. Continue reading

NLRB Final Rule Expands Joint Employer Definition

By Kara Maciel and Andrea Chavez

On October 26, 2023, the National Labor Relations Board (NLRB) issued its Final Rule (Final Rule) for determining joint-employer status under the National Labor Relations Act (NLRA). The Final Rule expands the scope of when an entity can be deemed a joint employer to when it “possesses the authority to control (whether directly, indirectly, or both), or to exercise the power to control (whether directly, indirectly, or both), one or more of the employee’s essential terms and conditions of employment.” Joint employers may have a duty to bargain with unions and may be exposed to what would otherwise be unlawful secondary union activity (e.g., picketing during labor disputes) as well as unfair labor practice liability, both jointly and individually. This change significantly increases potential liability for any entity that contracts with contractors, temporary workers, vendors, franchisees, and others. The rule goes into effect on December 26, 2023.

The new rule repeals and replaces the current rule, promulgated in 2020 by the Trump-era Board.  The 2020 rule requires an entity to “possess and exercise such substantial direct and immediate control over one or more essential terms or conditions of their employment” to be deemed a joint employer, and only considers evidence of indirect and reserved control to the extent that such control “supplements and reinforces” evidence of direct and immediate control.

The new rule largely marks a return to Continue reading

Title VII and the Use of AI in Employment Decisions

Employers are increasingly turning to artificial intelligence (“AI”) for assistance in making employment decisions, and although AI can eliminate disparate treatment, employers should be aware of the potential for disparate impact. Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination on the basis of race, color, religion, sex (including pregnancy, sexual orientation, and gender identity), or national origin in employment practices (recruiting, hiring, monitoring, transferring, evaluating, terminating).

While New York City is the only jurisdiction that regulates the use of AI in employment decisions, there is EEOC guidance on the use of AI in the workplace and as a result of President Biden’s October 30, Executive Order we expect the Secretary of Labor to issue best practices around the use of AI in employment decisions soon.

New York City

New York City Local Law 144 regulates the use of automated employment decision tools. Automated employment decisions tools are “any computational process, derived from machine learning, statistical modeling, data analytics, or artificial intelligence, that issues simplified output, including a score, classification, or recommendation, that is used to substantially assist or replace discretionary decision making for making employment decisions that impact natural persons.”

Under Local Law 144 employers or employment agencies that use an automated employment decision tool to screen a candidate or employee for an employment decision must: Continue reading

ADA Reasonable Accommodations & Managing the Interactive Process [Webinar Recording]

On Thursday, October 26, 2023, Conn Maciel Carey’s Labor and Employment attorneys presented a webinar regarding ADA Reasonable Accommodations & Managing the Interactive Process.

Presented by:
Aaron R. Gelb and Megan S. Shaked
of CMC’s Labor & Employment Practice Group

And Special Guest Diane Smason
(Acting Director for the EEOC Chicago District Office)

Understanding the employer’s obligations when responding to an employee’s request for a reasonable accommodation under the Americans with Disabilities Act, including when and how best to engage in the “interactive process” can be particularly challenging as there is rarely an obvious or easy answer. The law does not require an employee to make any reference to the ADA or use specific words, such as ‘disability’ or ‘reasonable accommodation,’ when requesting an accommodation, so employers must recognize the variety of ways in which a request for an accommodation may be articulated.

Unfortunately, far too many employers focus on the outcome—believing the need to find the perfect accommodation—when, in fact, the key to success is found in effectively engaging in the interactive process. When presented with a challenging request for accommodation, however, employers may give up too quickly or fail to appropriately consider and explore alternative options. Others mistakenly assume they have to provide the accommodation sought by their employee or something substantially similar to what was requested. Those employers that figure out the process tend not only to obtain better outcomes but can effectively protect themselves from costly judgments down the road.

Participants in this webinar learned: Continue reading

Conn Maciel Carey LLP’s Cal/OSHA and California Employment Law Practices Bolstered by Addition of Highly Regarded Attorney Andrea O. Chavez

Conn Maciel Carey LLP, (CMC) a boutique law firm with national practices in Labor and Employment Law, Workplace Safety Law (OSHA and MSHA), and Litigation, is pleased to announce that Andrea O. Chavez has joined the Los Angeles, California office as Senior Counsel in the firm’s Cal/OSHA and California Labor and Employment practices. She is in her seventh year of practice and brings her experience to the firm’s expanding California team.

“I represent employers in state and federal court and before administrative agencies in employment and safety-related disputes. This includes employment discrimination, wage and hour class action, NLRB, Cal/OSHA, and federal OSHA matters,” Ms. Chavez says. “I also focus on counseling employers on all matters related to managing employment relationships.”

CMC welcomes Ms. Chavez to CMC’s Southern California office. She joins the firm’s leadership team on the West Coast, alongside attorneys Megan Shaked and Rachel Conn based in Northern California. Continue reading

EEOC Proposes Updates to Workplace Harassment Guidance

The Equal Employment Opportunity Commission (EEOC) has proposed updated guidance for employers on workplace harassment. This article will point out some, but by no means all, of the most significant changes in the proposed guidance. Importantly, these guidance documents, even when final, are not law. Rather, they serve as a roadmap for how the EEOC will enforce the laws it is tasked with enforcing.

The new guidance, which covers a range of topics, incorporates explicit protections for reproductive choices and for LGBTQ+ workers. The guidance includes as sex-based harassment “harassment based on a woman’s reproductive decisions, such as decisions about contraception or abortion.” It also includes as sex-based harassment “…intentional and repeated use of a name or pronoun inconsistent with the individual’s gender identity (misgendering); or the denial of access to a bathroom or other sex-segregated facility consistent with the individual’s gender identity.” Continue reading

DC Attorney General Issues a Business Advisory Demystifying Restaurant Service Fee Compliance Requirements

Last month, Attorney General Brian L. Schwalb issued a new advisory explaining restaurants’ legal obligation to adequately disclose service fees. Under the DC Consumer Protection Procedures Act (CPPA), restaurants are required to disclose fees, including service fees, in a timely, prominent, and adequate manner.  This new advisory includes examples of compliant and non-compliant fee disclosures according to the CPPA.

According to AG Schwalb, the new advisory was motivated by diners expressing concerns about being surprised by unexpected fees and surcharges at the end of their meals. As well as that, the advisory indicated that diners have also expressed confusion about how restaurants are using service fees, especially whether restaurants distribute the fees as tips to servers or retain the fees to cover operational expenses.

Service Fee Language

The advisory emphasized that conclusory or general statements indicating service charges or service fees would not comply with the CPPA.

For example, the following statement would not comply with the CPPA:

A 22% service charge is included on every tab and will help to support our staff.

Whereas the following statement would comply with the CPPA:

A 22% service charge is included on every tab. 15% is distributed directly to service workers on top of their base wages, and the remaining 7% is used to help pay for our staff costs, such as base wages, health insurance, etc. You may choose to leave an extra tip.

Timely and Prominent Disclosure

The advisory also clarifies that restaurants must disclose the existence and amount of fees before diners place their orders. In addition, the advisory explains that restaurants cannot bury fees, or make obscure theme in smaller print. The advisory suggests that a good rule of thumb is for restaurants to communicate service fees in the same way that they communicate their prices.

Employer Takeaways

Using this guidance, DC restaurants should evaluate the substance, process, and prominence of their service fee language.  Where restaurants are found to be in violation of the CPPA, initial warnings may be issued as a precursor. However, it’s important to note that the Office of the Attorney General retains the authority to pursue remedies that encompass consumer refunds, imposition of penalties, and the enforcement of corrective actions upon these businesses.