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

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

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

[Webinar] Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation

On Wednesday, November 16, 2022 at 1 p.m. EST, join Lindsay A. DiSalvo and Megan S. Shaked for a webinar regarding Practical Advice for Responding to Administrative Charges of Discrimination and Retaliation.

When an administrative agency, like the federal Equal Employment Opportunity Commission (“EEOC”), receives a complaint of discrimination or retaliation, the employer is given an opportunity to respond and provide information/evidence pursuant to the agency’s investigation of the complaint. In its response, the employer can explain why the action taken against the employee was legitimate or did not occur as alleged. These responses are an opportunity for the employer to provide sufficient information to avoid further action by the administrative agency or potentially litigation of the claim(s). A strong response could demonstrate there is no support for the complaint and resolve the complaint in a favorable manner for the employer. However, these responses can also create a written record of admissions to which the agency can hold the employer accountable, and any supporting documentation may be closely scrutinized and used to establish liability. Thus, employers must be thoughtful in sharing information at this early stage and should ensure there is a procedure in place for managing and developing these responses.

Participants in this webinar will learn about: Continue reading

Preventing and Responding to Workplace Violence [Webinar Recording]

On Tuesday, October 11, 2022, Kara M. MacielLindsay A. DiSalvo, and special guest Terri D. Patterson, Ph.D., a Principal at Control Risks and threat management expert with over two decades of experience, presented a webinar on Preventing and Responding to Workplace Violence.

In 2020, physical assault was identified as the 4th leading cause of workplace deaths. Nearly 2 million American workers experience violent acts at work annually. As the COVID-19 pandemic appears to be entering the endemic phase and workers begin to transition back into the workplace, experts predict even more of an increase in workplace violence. Thus, employers will want to be prepared to prevent these types of incidents and protect their employees to the extent possible, as well as ensure they are doing all that’s required from a regulatory standpoint.

Workplace violence has been a focus for both the Occupational Safety and Health Administration (“OSHA”) and the Equal Employment Opportunity Commission (“EEOC”) well before the pandemic and remains so now. While OSHA has no specific standard for workplace violence, the OSH Act’s General Duty Clause requires employers to provide a workplace free from recognized serious hazards, and OSHA has instituted enforcement actions under its General Duty Clause after incidents of workplace violence. OSHA has also initiated a rulemaking to address workplace violence in specific industries. For its part, the EEOC has also prioritized ways to effectively prevent and address workplace violence, particularly in the form of workplace harassment. And outside of OSHA and the EEOC, employers can also be held liable for workplace violence through other claims such as negligent hiring and supervision.

In this webinar, attendees learned: Continue reading

What Does the EEOC’s Updated COVID-19 Testing Guidance Mean for Employers

By Kara M. Maciel and Ashley D. Mitchell

As COVID-19 infections continue to climb, the EEOC rolled back its guidance that COVID-19 viral screening tests conducted by employers is always permissive under the Americans with Disabilities Act (“ADA”). The updated guidance requires employers to weigh a host of factors and determine whether COVID-19 viral screening is “job-related and consistent with business necessity,” the traditional standard for determining compliance with the ADA.

The Factors Employers Should Consider:

Under the EEOC’s updated FAQs, an employer may, as a mandatory screening measure, administer a COVID-19 viral test, if the employer can show it is “job-related and consistent with business necessity.” In making this determination, employers should assess these factors:

  • The level of community transmission
  • The vaccination status of employees
  • The accuracy and speed of processing different types of COVID-19 viral tests
  • The degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations
  • The ease of transmissibility of the current variant(s)
  • The possible severity of illness from the current variant
  • What types of contact employees may have with others in the workplace or elsewhere that they are required to work
  • The potential effect on operations of an employee enters the workplace with COVID-19

It is worth noting, that employers still cannot require antibody testing before permitting employees to re-enter the workplace.

The State of the Pandemic:

Continue reading

Appearance Discrimination Issues, the CROWN Act, and Unconscious Bias [Webinar Recording]

On Wednesday, July 20th, Aaron R. Gelb and Ashley D. Mitchell presented a webinar regarding Appearance Discrimination Issues, the CROWN Act, and Unconscious Bias.

Appearance-based discrimination occurs when someone is treated differently based on how they look. Although there is no federal law that prohibits “appearance discrimination” in employment, claims involving such issues are typically brought in the context of prohibited race, sex, or disability discrimination allegations. While there was a case several years ago that garnered a good deal of media attention involving a female bank employee who claimed she was told she was “too sexy” for her position, it is more common to encounter claims by women (and men) that they were treated less favorably than a coworker whom the boss found attractive. Obese workers have alleged that they were perceived as disabled because of their weight and employees who wear certain garments and/or jewelry as part of their religion have also filed claims of discrimination. Meanwhile, hairstyles and types are now on the cutting edge of fair employment law compliance.

For years, savvy employers recognized that there may be a need to accommodate certain religious beliefs pertaining to hairstyles, but a growing number of jurisdictions have passed or are considering laws that prohibit race-based hair discrimination such as the CROWN Act (“Creating a Respectful and Open World for Natural Hair”) which is focused on ending the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists or bantu knots.

Participants in this webinar learned: Continue reading

[Webinar] Appearance Discrimination Issues, the CROWN Act, and Unconscious Bias

On Wednesday, July 20th at 1 p.m. EST, join Aaron R. Gelb and Ashley D. Mitchell for a webinar regarding Appearance Discrimination Issues, the CROWN Act, and Unconscious Bias.

Appearance-based discrimination occurs when someone is treated differently based on how they look. Although there is no federal law that prohibits “appearance discrimination” in employment, claims involving such issues are typically brought in the context of prohibited race, sex, or disability discrimination allegations. While there was a case several years ago that garnered a good deal of media attention involving a female bank employee who claimed she was told she was “too sexy” for her position, it is more common to encounter claims by women (and men) that they were treated less favorably than a coworker whom the boss found attractive. Obese workers have alleged that they were perceived as disabled because of their weight and employees who wear certain garments and/or jewelry as part of their religion have also filed claims of discrimination. Meanwhile, hairstyles and types are now on the cutting edge of fair employment law compliance.

For years, savvy employers recognized that there may be a need to accommodate certain religious beliefs pertaining to hairstyles, but a growing number of jurisdictions have passed or are considering laws that prohibit race-based hair discrimination such as the CROWN Act (“Creating a Respectful and Open World for Natural Hair”) which is focused on ending the denial of employment and educational opportunities because of hair texture or protective hairstyles including braids, locs, twists or bantu knots.

Participants in this webinar will learn: Continue reading

D.C. Circuit Lessens Burden of Proof for Title VII Job Transfer Claims

On June 3, 2022, the full court of the U.S. Court of Appeals for the District of Columbia overturned long-standing precedent regarding the burden of proof a plaintiff must carry in pursuing a Title VII Claim.  In Chambers v. District of Columbia (D.C. Cir. 2022), the D. C. Circuit held in a 9-3 en banc decision that when an employer transfers an employee or denies an employee’s request for a transfer because of the employee’s race, color, religion, sex, or national origin, the employer violates Title VII by discriminating against the employee in his or her “terms, conditions, or privileges” of employment. The court’s opinion overruled a nearly 24-year old precedent that held the denial or forced acceptance of a job transfer is actionable only if an employee suffers “objectively tangible harm.”  See Brown v. Brody (D.C. Cir. 1999).  The court’s decision could have sweeping effects on Title VII litigation throughout the country, as the diminished burden of proof is significantly more plaintiff-friendly and causes concern for employers when evaluating job transfers and potentially other employment actions.

Background

The plaintiff worked in the Attorney General’s office in the District of Columbia for more than two decades as a clerk, Support Enforcement Specialist, and investigator.  She requested several transfers to other units in the Attorney General’s office after complaining that she had a much larger caseload than her comparators.  All of her transfer requests were denied, and she ultimately filed an EEOC charge and a lawsuit in 2014 alleging sex discrimination and retaliation. 

The district court relied on Brown in granting the District of Columbia’s motion for summary judgement.  On appeal, a three-judge panel of the D.C. Circuit upheld the district court’ ruling.  However, two of the three judges highlighted that Title VII does not make any reference to “objectively tangible harm” and requested the full court to further review the matter. 

The D.C. Circuit, in common with many other federal courts, has long imposed this tangible harm requirement articulated in Brown because of the view that Title VII is not a general “civility code” and that employees challenging discriminatory decisions should show more than de minimis harm lest courts be involved in supervising myriad routine business decisions. However, the en banc panel overruled Brown – holding that the refusal of a transfer request for one employee while granting similar requests to a similarly situated co-worker on the basis of a protected trait is discriminatory because it “deprives the employee of a job opportunity.”

Continue reading

Artificial Intelligence in the Workforce

On June 7, 2022, Conn Maciel Carey LLP partners Kara Maciel and Jordan Schwartz interviewed EEOC Commissioner Keith Sonderling about the EEOC’s recent focus on Artificial Intelligence (AI) and its impact on workplace discrimination. 

AI refers to a “machine-based system that can, for a given set of human-defined objectives, make predictions, recommendations or decisions influencing real or virtual environments.”[1]  It can feature in software used to complete tasks previously completed by human beings.  Relevant to the discussion with Commissioner Sonderling, employers can use AI in most employment and/or hiring decisions, such as who to inform about a new position, who to interview, and who to select for a position. 

When making those decisions, employers could suffer liability if they discriminate against an individual based on their race, color, religion, sex, national origin, age, pregnancy, disability status, or genetic information[2].  Unlawful discrimination can occur two ways – disparate treatment and disparate impact.  Disparate treatment occurs when individuals are intentionally discriminated against by an employer, whereas disparate impact refers to unintentional discrimination – where an employer’s neutral policies or procedures negatively impact individuals in a particular protected class.  

Employers should be aware, as Commissioner Sonderling stressed in his remarks, that AI technologies are only as good as the data and training used to develop them.  There have been numerous instances where employers who used AI tools to assist in employment and/or hiring decisions have been left with discriminatory results and potential disparate impact liability as a direct result of the technology.

Commissioner Sonderling offered some examples of ways that AI could unintentionally produce discriminatory results in employment decisions:

A Chat with EEOC Commissioner Keith Sonderling: Artificial Intelligence in the Workforce in 2022 and Beyond [Recording]

​On Tuesday, June 7, 2022, Kara Maciel and Jordan Schwartz presented a very special bonus event in Conn Maciel Carey’s 2022 Labor and Employment Webinar Series in the form of a panel webinar program regarding The Impact of Artificial Intelligence on the Workforce in 2022 and Beyond.

Presented by
Conn Maciel Carey LLP with Special Guest
EEOC Commissioner Keith Sonderling

On May 12, 2022, the 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’s no secret that more employers have turned to AI to enhance their work processes over the years. An estimated 83% of employers have Continue reading