DOL

Title VII and the Use of AI in Employment Decisions

Ashley D. Mitchell Leave a comment

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 →

Announcing Conn Maciel Carey LLP’s 2023 Labor and Employment Webinar Series

Theresa Green Leave a comment

Announcing Conn Maciel Carey LLP’s

2023 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 3 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.  

Conn Maciel Carey’s complimentary 2023 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examine past trends and look ahead at the issues most likely to arise.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2023 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past eight years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars.

California Employment Law Update

Thursday, January 19, 2023

Remote Work Challenges

Wednesday, February 22, 2023

Whistleblower/Retaliation Issues

Tuesday, March 21, 2023

Pay Transparency & Non-Compete Laws

Wednesday, April 20, 2023

Managing Internal Investigations

Thursday, May 11, 2023

Hot Topics in Wage and Hour Law

Tuesday, June 20, 2023

Marijuana and Drug Testing

Tuesday, July 18, 2023

Privacy Issues in the Workplace

Wednesday, September 20, 2023

ADA Reasonable Accommodations

Wednesday, October 18, 2023

Artificial Intelligence in the Workplace

Tuesday, November 21, 2023

NLRB Issues and Joint Employer Update

Thursday, December 14, 2023

See below for the full schedule with program descriptions, dates, times and links to register for each webinar event.

Continue reading →

[Webinar] Recap of Year Two of the Biden Administration

Theresa Green Leave a comment

On Wednesday, December 7, 2022 at 1 p.m. EST, join Kara M. Maciel and Aaron R. Gelb for a webinar regarding a Recap of Year Two of the Biden Administration.

As we approach the midway point of the Biden Administration, we will take stock of the lay of the land at Biden’s DOL, reviewing the initiatives the Department and its agencies have focused on in Year 2 and evaluating how they have fared in driving change at DOL, EEOC, NLRB, and OSHA. We will also assess those agencies’ rulemaking, policymaking, and enforcement efforts; make predictions about what employers can expect from the Biden Administration’s DOL in the second half of President Biden’s presidential term; and assess the impact of the mid-term elections.

Participants in this webinar will learn about: Continue reading →

Alternatives For Employers Considering Workforce Reduction

Megan Shaked Leave a comment

By Andrew J. Sommer and Megan S. Shaked

This article addresses alternatives to reductions in force, or RIFs.[1] An RIF is an involuntary termination of employment, usually due to budgetary constraints, changes in business priorities or organizational reorganization, where positions are eliminated with no intention of replacing them.

Because RIFs can be costly to implement, increase the potential for employment lawsuits and lower morale of the remaining employees, employers may consider alternatives such as furloughs, voluntary separation programs, or VSPs, and early retirement incentive plans, or ERIPs.

Such alternatives can help reduce employers’ labor costs or workforce while avoiding or minimizing adverse consequences associated with a RIF.

This article discusses each of these alternatives to RIFs in detail to help you and your employer client decide which alternative is best under the circumstances:

Furloughs

One alternative to a RIF is a furlough.

Furloughs are temporary layoffs or some other modification of normal working hours without pay for a specified duration. The structure of furloughs can vary. For instance, in some furloughs employees have consecutive days of nonduty — for example, taking the first two weeks of each month off — or take off a designated day each week.

In another example, the employee may take a certain number of days off each month, but which days those are may vary from month to month. Some employers may allow employees to choose which days to take off on their furlough. A furlough may also be a temporary layoff, where the employee remains employed with a predeterminated return date, which may be extended depending on the circumstances.

Furloughs can eliminate the need for a RIF in some cases by reducing the employer’s payroll costs. However, even on unpaid days, furloughed employees do cost the employer something, because employees on a furlough usually receive employment benefits. In a unionized workforce, employers must negotiate the furlough terms and schedule with the union.

Key Pros and Cons of Furloughs Versus RIFs

There are several pros and cons to consider when determining whether a furlough is a good alternative to a RIF. The advantages of furloughs over RIFs include:

Employers avoid employment terminations and the attendant potential legal liability.

Employees don’t lose their jobs.

Continue reading →

DOL Sues Employer Over Pile of Pennies

Lindsay A. DiSalvo Leave a comment

By Lindsay A. DiSalvo

Pennies,Coins,MoneyWe thought it would be a good break from all the COVID-19-related coverage to delve into a retaliation case under the Fair Labor Standards Act (“FLSA”) through the lens of an interesting recent complaint filed by the Department of Labor (“DOL”) involving…a huge pile of pennies. A review of the case addresses both the types of actions that would be considered retaliatory under the law, as well as the significance of proximity when analyzing the viability of a case of retaliation. The facts as alleged by the DOL also act as a warning against the role internet postings can play in supporting a legal action.

Facts as Asserted in the Complaint

Though somewhat extraordinary, the facts in the case seem fairly straightforward. Per the DOL’s Complaint, Continue reading →

Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

Theresa Green Leave a comment

2022 LE Webinar Series

Announcing Conn Maciel Carey’s 2022 Labor and Employment Webinar Series

The legal landscape facing employers seems as difficult to navigate as it has ever been.  Keeping track of the ever-changing patchwork of federal, state and local laws governing the workplace may often seem like a full-time job whether you are a human resources professional, in-house attorney or  business owner.  Change appears to be the one constant.  As we enter Year 2 of President Biden’s Administration, employers will continue to closely track the changes taking place at the NLRB, the DOL and the EEOC.  At the same time, a number of states will continue introducing new laws and regulations governing workplaces across the country, making it more important than ever for employers to pay attention to the bills pending in the legislatures of the states where they operate.

​Conn Maciel Carey’s complimentary 2022 Labor and Employment Webinar Series, which includes monthly programs (sometimes more often, if events warrant) put on by attorneys in the firm’s national Labor and Employment Practice, will focus on a host of the most challenging and timely issues facing employers, examining past trends and looking ahead at the issues most likely to arise.

To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2022 series, click here to send us an email request, and we will register you.  If you missed any of our programs from the past seven years of our annual Labor and Employment Webinar Series, here is a link to an archive of recordings of those webinars. 

2022 Labor and Employment Webinar Series – Program Schedule

Continue reading →

OSHA Issues Its COVID-19 Vaccination, Testing, and Face Coverings Emergency Temporary Standard

Kara Maciel Leave a comment

By Conn Maciel Carey LLP’s COVID-19 Task Force

At long last, OSHA has revealed its COVID-19 Vaccination and Testing emergency regulation.  The Federal Register site has updated to show the pre-publication package, which is set to run officially in the Federal Register tomorrow, November 5th.  The 490-page package includes the Preamble and economic analysis of the regulation, as well as the regulatory text.  The regulatory text begins on PDF page 473.  Also here is a Fact Sheet about the ETS issued simultaneously by the White House.

We are extremely pleased to report that the rule aligns very well with positions for which CMC’s Employers COVID-19 Prevention Coalition advocated to OSHA and OMB on the most significant topics, like the responsibility for the cost of COVID-19 testing and a delayed implementation date, as well as very narrow record-preservation requirements, grandfathering of prior vaccine-verification efforts, and other elements. OSHA and the White House clearly listened to our views and the compelling rational we put forward for these positions, making the rule a much better, more effective and less burdensome one for employers.

Conn Maciel Carey’s COVID-19 Task Force will be conducting a webinar about the ETS on Wednesday, November 10th at 1:00 PM ET.Here is a link to register for that program.

In the meantime, below is a detailed summary of the rule:

What is the stated purpose of the regulation?

The ETS is “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace, and to preempt inconsistent state and local requirements relating to these issues, including requirements that ban or limit employers’ authority to require vaccination, face covering, or testing, regardless of the number of employees.”

Who is covered?

As the president signaled in his announcement and action plan from September 9, the ETS applies only to employers with 100 or more employees, and the rule does make it explicit that the way you count those employees is on a company–wide basis, not establishment-by-establishment.

Continue reading →

New DOL Proposed Rule Reverses Course on Treatment of Tipped Employees

Lindsay A. DiSalvo Leave a comment

On Monday, June 21st, the Department of Labor (“DOL”) issued a Notice of Proposed Rulemaking (“NPRM”) that would alter regulations interpreting who is considered a “tipped employee” under the Fair Labor Standards Act (“FLSA”) yet again.  Specifically, the NPRM proposes (1) to withdraw the dual jobs Picture1portion of the Final Rule promulgated in December 2020; and (2) a new regulatory framework by which to determine whether an employee is performing work that meets the definition of a tipped occupation and allows the employer to take a tip credit under the FLSA.  Specifically, the FLSA allows an employer to pay a tipped employee less than the minimum wage – specifically $2.13 per hour under Federal law – only when the worker is engaged in a tipped occupation because the tips the employee receives should make up for the rest of minimum wage hourly rate.  The NPRM creates a revised standard by which an employer would determine who is a “tipped employee” and for what portion of that employee’s work hours the employer can take a tip credit and pay the employee at the lower rate.  The standard the DOL proposes to adopt generally reflects the interpretive guidance it maintained for decades before a new standard was established during the Trump Administration – the “80/20 Rule” – along with some other changes that the DOL asserts better define tipped work. 

Background of the Dual Jobs Standard for Tipped Employees

Under the FLSA, “tipped employees” are defined as those employees who customarily and regularly receive more than $30 a month in tips.  As stated, employers can pay tipped employees a reduced cash wage and claim a “tip credit” to make up the difference between the reduced cash wage and hourly minimum wage.  When the DOL first published its regulations on application of the tip credit, it directly addressed the scenario where an employee has “dual jobs” under 29 C.F.R. 531.56(e) – two jobs for the same employer.  In that situation, employers can take the tip credit only for the tipped job (i.e., the one routinely satisfying the $30-a-month provision).  Later, the DOL revised its Field Operations Handbook (FOH), vastly broadening the scope of its “dual jobs” distinction by applying it to dual tasks.  It stated that when “tipped employees spend a substantial amount of time (in excess of 20%) performing preparation work or maintenance, no tip credit may be taken for the time spent in such duties.”  This is what’s known as the “80/20 rule.”

The DOL enforced this interpretation until 2018 when Continue reading →

State COVID-19 Regulations Multiply as Fed. OSHA Declines to Adopt General Industry COVID-19 Regulations

Daniel C. Deacon Leave a comment

Well over a year after the pandemic began, federal OSHA has declined to adopt a set of COVID-19 regulations for general industry.  Shape,3d,Of,State,Of,New,York,Map,With,FlagJust yesterday, federal OSHA announced that it had “completed” the rulemaking process for the COVID-19 emergency temporary standard, which will only apply to healthcare industry employers.  This long awaited rule is expected to be released later today.  While federal OSHA has been evaluating whether a COVID-19 ETS is even necessary, several states have been aggressive in passing their own workplace safety and health rules related to COVID-19.  Most recently, New York State passed the New York Health and Essential Rights Act (HERO Act), which went into effect just last week on June 4, 2021.  New York State joins a number of states that have promulgated COVID-19 regulations, including California, Virginia, Oregon, Michigan, and, in the near future, Maryland.  In light of federal OSHA’s decision to adopt COVID-19 regulations solely related to the health care industry, several other states may take action to implement their own COVID-19 regulations.  New York State’s HERO Act, however, goes even one step further.  The HERO Act is not solely focused on COVID-19, it addresses any and all airborne infectious diseases.

New York is also the first state in the country to require its Department of Labor to develop “industry-specific” health and safety standards for private sector employers to reduce the risk of airborne illnesses for employees (including but not limited to COVID-19).  New York employers should move quickly to adopt safety and health plans and revise employee handbooks to conform with the Act’s requirements.  Below is an overview of the key provisions of the Act.

Safety Plans

Under Section 1 of the HERO Act, all private employers, of any size, are required to create a written prevention plan of health and safety standards to protect employees from workplace exposure to airborne infectious diseases.  The New York State Department of Labor (NY DOL), in consultation with the Department of Health, was required to publish industry-specific model safety and health plan by June 4, 2021, however that deadline was not met.  As a condition to signing the act, Governor Cuomo secured an agreement with the New York State Legislature to make technical changes to the Act, which included providing the NY DOL and employers more specific instructions in developing and implementing the workplace standards.  The NY DOL indicated that the model plan is currently being drafted, but there is no firm deadline on when that will be issued.

However, the HERO Act does specifically outline what the model standard is required to address, which includes Continue reading →

Telemedicine Appointments are Sufficient to Establish a Serious Health Condition for FMLA Leave

Daniel C. Deacon Leave a comment

On December 29, 2020, the U.S. Department of Labor Wage and Hour Division (WHD) issued Field Assistance Bulletin 2020-8 regarding the use of telemedicine in establishing a “serious health condition” under the Family and Medical Leave Act (FMLA).

Picture1The FMLA provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 workweeks of leave in a 12-month period for, among other things, a serious health condition that makes the employee unable to perform the essential functions of his or her job, or to care for the employee’s spouse, son, daughter, or parent with a serious health condition. See 29 U.S.C. § 2612(a)(1)(C)-(D); 29 CFR § 825.112(a)(3)-(4).

Under the FMLA, a “serious health condition” is an “illness, injury, impairment, or physical or mental condition that involves” either: (1) “inpatient care,” such as an overnight stay in a hospital, hospice, or residential medical care facility, including any period of incapacity or any subsequent treatment in connection with such inpatient care; or (2) “continuing treatment by a health care provider.” The FMLA regulations define the term “treatment” to include “examinations to determine if a serious health condition exists and evaluations of the condition.” The regulations also provide that “[t]reatment by a health care provider means an in-person visit to a health care provider.”  The “in-person visit” requirement Continue reading →