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

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

​Join Kara Maciel and Jordan Schwartz on Tuesday, June 7th at 2 PM ET for 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

Religious and Disability Accommodations in Response to COVID-19 Mandates [Webinar Recordings]

On Thursday, April 7, 2022, Andrew J. Sommer and Lindsay A. DiSalvo presented a webinar regarding Religious and Disability Accommodations in Response to COVID-19 Mandates.

Employee requests for medical and/or religious accommodations in the workplace are not new. However, never before have these accommodation requests been such a hot-button topic, nor have these accommodation requests been used so frequently (and in particular, religious accommodation requests). The imposition of COVID-19 vaccine mandates has changed that, particularly with regard to religious accommodation requests, which has become the ultimate “gray area,” as both employers and employees alike have learned that sincerely held religious belief can include an employee’s religious-based objection to vaccinations. As a result, the Equal Employment Opportunity Commission (“EEOC”) has issued guidance regarding the obligations of employers under Title VII when an employee presents with a religious objection to a mandatory COVID-19 vaccination policy, which actually builds upon prior EEOC guidance regarding COVID-19 vaccinations in the employment context. Thus, there are multiple issues that employers need to keep in mind and juggle when addressing these vaccination accommodation requests.

Participants in this webinar learned how to best deal with such requests by their employees, including: Continue reading

Employment Law Implications of the OSHA ETS: Paying for COVID-19 Testing

By Conn Maciel Carey’s COVID-19 Taskforce

As the OSHA COVID-19 Vaccination and Testing emergency temporary standard (“ETS”) works its way through the courts in pending legal challenges, employers are still scrambling to position themselves in the event the ETS goes back into effect.  (Review our Employer Defense Report and OSHA Defense Report for full background on the ETS and the most recent updates on its current status.)  A key issue to consider is the cost of testing.

Background

Should the ETS go back into effect, employers with 100 or more employees must implement a program to facilitate (1) a COVID-19 vaccination requirement for all employees (known as a “hard mandate”) or (2) a combination of a COVID-19 vaccination requirement and weekly testing, plus face covering requirement, for those employees who choose not to get vaccinated (known as a “soft mandate”).  Under this soft-vaccine mandate, an employee may only report to the workplace after demonstrating either: proof of being fully vaccinated; or for employees who do not get vaccinated or decline to share their vaccination status, proof of a negative COVID-19 test result from within the last week.  Employees who are not fully vaccinated must also wear face coverings when indoors and when occupying a vehicle with another person for work purposes.

Under the ETS, a COVID-19 test must be: Continue reading

EEOC Updates COVID-19 Vaccination Guidance

By Conn Maciel Carey’s COVID-19 Task Force

Last week, Conn Maciel Carey posted a blog article about How to Navigate the Thorny Legal Landscape Around Employee Vaccination Status.  One of the observation in that article was that we were all on the edge of our seats waiting for the EEOC to issue promised guidance about employer incentives and mandates about the COVID-19 vaccination.  On Friday, the EEOC finally issued much-anticipated updated FAQs about the legal landscape of various employer vaccinations policies.

Here is a summary of the vaccine section of the guidance:

May employers ask employees about vaccination status under federal law?  See FAQs K9, K5, K15, K16, K18, K19

  • Yes – does not violate ADA or GINA.
  • However, employer should not ask “why” an employee is unvaccinated, as this could compel the employee to reveal disability information that is protected under the ADA and/or GINA.
  • Recommended practice: If employer requires documentation or other confirmation of vaccination, “notify all employees that the employer will consider requests for reasonable accommodation based on disability on an individualized basis.”

Is vaccination information “confidential” under the ADA?  See FAQ K4

  • Yes, this includes documentation (i.e., the white vaccination card)  or “other confirmation” of vaccination, which we presume means any self-attestation form or email from the employee, as well as any record, matrix, spreadsheet, or checklist created by the employer after viewing employees’ vaccination cards or receiving a verbal confirmations from employees.
  • The records or information must be kept confidential and stored separately from employee personnel files.

How may employers encourage employees and family members to get vaccinated?  See FAQ K3 Continue reading

Announcing Conn Maciel Carey’s 2021 Labor and Employment Webinar Series

2021 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 President Trump’s Administration comes to an end, 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.  This complimentary webinar series 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.

Conn Maciel Carey’s complimentary 2021 Labor and Employment Webinar Series, which includes (at least) monthly programs put on by attorneys in the firm’s national Labor and Employment Practice, is designed to give employers insight into legal labor and employment developments.

​To register for an individual webinar in the series, click on the link in the program description below. To register for the entire 2021 series, click here to send us an email request, and we will register you. If you missed any of our past programs from our annual Labor and Employment Webinar Series, click here to subscribe to our YouTube channel to access those webinars.


2021 Labor & Employment Webinar Series – Program Schedule

California Employment Law Update for 2021

Wednesday, January 20th

Marijuana, Drug Testing and Background Checks

Tuesday, July 13th

COVID-19 Vaccine: What Employers Need to Know

Thursday, February 11th

Employee Misconduct Defense & Employment Law

Wednesday, August 11th

Employment Law Update in D.C, MD, VA and Illinois

Wednesday, March 24th

Employee Handbooks, Training and Internal Audits

Tuesday, September 21st

Withdrawal Liability Pensions

Wednesday, April 14th

NLRB Update

Tuesday, October 19th

ADA Website Compliance Issues –  Best Strategies for Employers

Tuesday, May 18th

Avoiding Common Pitfalls: Non-Compete, Trade Secrets and More!

Wednesday, November 10th

What to Expect from DOL Under the Biden Admin.

Wednesday, June 16th

Recap of Year One of the Biden Administration

Tuesday, December 14th

   

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

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What You Should Know About COVID-19, the Americans with Disabilities Act, and the Age Discrimination in Employment Act

As the U.S. enters month seven of the COVID-19 pandemic, employers continue to grapple with how to keep employees safe without violating the rights of employees protected by the Americans with Disabilities Act (“ADA”) and the Age Discrimination in Employment Act (“ADEA”). The Centers for Disease Control and Prevention (“CDC”) has issued guidance to slow the spread of COVID-19 in the workplace encouraging employers to: (1) actively encourage sick employees to stay home; (2) conduct daily in person health checks such as temperature and symptom screenings; and (3) ensure that workers are able to follow social distancing guidelines as much as practicable and encouraging employees to wear face masks where social distancing is not possible. Employers should remain vigilant against enacting policies meant to keep employees safe but have a disparate impact on employees in a protected class.

The Americans with Disabilities Act

The Americans with Disabilities Act (“ADA”) prohibits employers with 15 or more employees from discriminating against job applicants and/or employees with disabilities. If a job applicant or employee has a disability and requests an accommodation, employers must engage in an interactive process and are required to provide a reasonable accommodation to the extent it does not cause the employer undue hardship.

In the context of COVID-19, employers may screen employees entering the workplace for COVID-19 symptoms consistent with CDC guidance. For example, an employer may: (1) ask questions about COVID-19 diagnosis or testing, COVID-19 symptoms, and exposure to anyone with COVID-19 (but employers should be sure the question is broad and does not ask employees about specific family members so as not to run afoul of the Genetic Information Nondiscrimination Act (“GINA”)); (2) take an employee’s temperature; and (3) administer COVID-19 viral tests (but not anti-body tests). If an employee is screened and has symptoms that the CDC has identified as consistent with COVID-19, the employer may – and indeed, should – exclude the employee from the workplace. It is also okay – and again, advisable – for an employer to send an employee home who reports feeling ill during the workday.

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Expert Panelists Testify Before EEOC on “Revamping Workplace Culture to Prevent Harassment”

shutterstock_me tooOn October 31, 2018, roughly one year after the beginning of the #MeToo movement, the U.S. Equal Employment Opportunity Commission (EEOC) held a public meeting at agency headquarters in Washington, D.C. entitled “Revamping Workplace Culture to Prevent Harassment.”  The purpose of this meeting was to hear various approaches that different industries are implementing to prevent harassment and provide employers the skills, resources, and knowledge to respond workplace harassment.

Acting Chair Victoria Lipnic began the meeting by noting that the nation is at the apex of a cultural awakening that the EEOC has been tracking for years.  Since the #MeToo movement went viral, hits on the EEOC website Continue reading

Hearings for EEOC Nominees Highlight Potential Shifts in EEOC Policy and Agenda

EEOC PictureOn September 19, 2017, the Senate Health, Education, Labor and Pensions (“HELP”) Committee held confirmation hearings for President Trump’s nominees to fill the two vacant Equal Employment Opportunity Commission (“EEOC” or “Commission”) positions – Janet Dhillon and Daniel Gade.  While a new administration almost always signals a policy shift, change typically occurs over a prolonged period of time.  However, given the immediate changes implemented under the Congressional Review Act, efforts to dismantle Obama-era regulations, and prompt action to curb the Affordable Care Act and immigration policy, industry can likely expect swift policy changes implemented throughout government agencies, including the EEOC.

The EEOC is set-up for perhaps the one of the largest policy shifts that business has seen in decades.  The foundation for such changes lies in the two current vacancies in the Commission.  President Trump’s nominations of Dhillon and Gade will change the makeup of the EEOC leadership to three Republican members and two Democratic members.  Additionally, the perspective that these two nominees will bring to the EEOC is likely to shift the agency’s priorities and help ease regulatory burdens on employers.

The Nominees

Janet Dhillon is the former General Counsel at Burlington Stores Inc. who has a long history of supporting Republican candidates for elected office, including John McCain and Ted Cruz.  Unlike the current Commissioners, Dhillon will bring a unique perspective that will be welcomed by employers.  Her experience as an in-house lawyer at a large company provides the backdrop for a more employer-friendly stance on workplace issues.

Gade is also an intriguing pick to fill the other vacant position at the EEOC.  Gade is a graduate of the United States Military Academy at West Point who served in Iraq.  He was decorated for valor with two purple hearts and most recently served as an assistant professor at West Point.  If confirmed, Gade will be the only non-lawyer on the Commission.  Gade has taken a hard-nosed stance on disability benefits for veterans, and what he believes is a perverse incentive for them to rejoin the workforce.  Although he would be the only Commissioner without any experience enforcing anti-discrimination laws, his views suggest that he would make a concerted effort to address disability claims, especially those concerning veterans.  In FY 2016 alone, disability discrimination charges accounted for approximately 31% of all charges received by the EEOC, which marks an 11% increase since 2001.

Mission to Decrease Burden on Employers

The nominations of Dhillon and Gade certainly reflect President Trump’s firm commitment to decreasing burdens on employers.  Since taking office, President Trump has been adamant on his mission to cut regulation on employers.  President Trump has already reversed one Obama-era EEOC initiative designed to further regulate the workplace.  Specifically, on August 29, 2017, the OMB’s Office of Information and Regulatory Affairs issued a memorandum to the EEOC informing the agency that the revised 2016 pay data requirements were being stayed immediately and directing the agency to submit a new information collection package for the EEO-1 form for OMB’s review.

As a consequence, according to Acting Chair Victoria Lipnic, the earlier approved EEO-1 form remains in effect, and employers with 100 or more employees and federal contractors will be required to submit only the data required before the September 2016 EEO-1 report changes.  The deadline to submit these EEO-1 forms remains March 17, 2018.

Increase in Mediation

Both Dhillon and Gade commented in their opening remarks that they are committed to addressing the substantial backlog of charges currently before the EEOC.  Gade highlighted that his first priority, if confirmed, would be to address the backlog of charges being investigated by the EEOC.  Dhillon commented that it is “a sad reality that too often, justice delayed is justice denied[,]” and that conciliation and education is “critically important to the EEOC’s mission.”

If both candidates are confirmed, the drive to address the existing backlog and pending matters quickly will likely signal an increased emphasis on mediation.  Parties may be under shortened deadlines to submit information, produce documents and supporting evidence, and there will likely be less cases pursued by the EEOC unless it has solid and substantial grounds to bring a case.

Despite the number of large cases brought by the EEOC during the Obama administration, mediation actually accounted for a majority and benefits accumulated for aggrieved parties over the past several years.  The FY 2018 EEOC budget justification echoes this trend – highlighting its increased efforts to focus on mediation, conciliation, and employer outreach, as opposed to litigation, which is listed as the final EEOC priority for FY 2018:

EEOC’s priorities for FY 2018 are to make critical investments needed to make the Commission an agency focused on addressing the needs and challenges of the workplace of the future. As jobs for Americans are increased under this Administration, we as an agency will seek to increase equality of employment opportunity in the workplace through enhanced outreach and education; voluntary compliance efforts; high quality investigations; early and voluntary resolution of matters (including mediation and quality conciliations); and strategic litigation to enforce the laws under our jurisdiction.

While the EEOC’s strategic objective to reduce the backlog may mean more involvement initially, the long-term effect of this policy shift will decrease burdens on employers and facilitate a less adversarial relationship with the EEOC.

Potential Shift in Title VII Policy on LGBT Discrimination

Another issue that employers are watching closely, due largely to the current uncertainty throughout the legal system, is LGBT protections under Title VII.  Under the Obama Administration, the EEOC took the position that sexual orientation and gender identity were a protected category under Title VII.

The new Administration has already made several moves within the first 8 months of taking office to reverse these protections.  Notably, within the first month of the new Administration, in February 2017, President Trump withdrew Obama-era protections for transgender students in public schools that called for them to be permitted to use bathrooms and facilities corresponding with their gender identity.  The backlash that arose from this policy change led the Department of Education to issue an internal memo directing attorneys to continue to examine discrimination claims brought by transgender students and not automatically reject them due to this change in policy.  More recently, on August 25, 2017 President Trump issued a memorandum to the Secretary of Defense and Secretary of Homeland Security banning transgender individuals from serving in the United States military.

The Administration’s shift in policy with respect to sexual orientation and transgender protections will similarly make its way to the forefront of issues needed to be addressed by the EEOC sooner rather than later.  With the anticipated shift in the makeup of the EEOC leadership, the EEOC is more likely to reverse the Obama-era stance on sexual orientation and transgender protections.  This would be a momentous change in the employment law context, as former Commissioner Jenny Yang labeled the Commission’s work on sexual orientation discrimination one of the greatest successes of her career at the EEOC.

During the confirmation hearings, neither Dhillon nor Gade would confirm that they would interpret Title VII as protecting LGBT workers.  When questioned during the hearing, Dhillon’s comments suggested that she may be ready to overturn findings of LGBT protections on the basis the that the U.S. government should speak with one voice on the issue.  When questioned by Sen. Patty Murray (D-Wash.), the top Democrat on the Senate HELP Committee, Dhillon expressed a lack of commitment to upholding the EEOC’s determination Title VII applies to LGBT workers, although the nominee said she’s “personally opposed” to anti-LGBT discrimination.  Gade was also tentative in his response on the issue, noting that he is “personally opposed to discrimination on the basis of . . . sexual orientation or gender identity” but that he is “committed to enforcing the law as its written and as the court interpreted it.”

Conclusion

The anticipated new viewpoints and a Republican-favored Commission will be welcomed by employers.  Ultimately, the commitment to decreasing the regulatory burden on employers and increasing educational outreach will provide more opportunities for employers to learn how to best manage their employees and operate their workplace, and it will also lend itself to a less adversarial relationship with the agency.

Although changes are expected in the near future, employers should nonetheless remain cautious about EEOC investigations and enforcement actions.  The new administration is not fully established throughout the agencies, and uncertainty regarding many issues, including Title VII interpretations and pay equity, are currently hot issues before the courts.  Therefore, employers should maintain and continue to enforce their employment policies, as they had under the Obama Administration, and ensure that they foster a welcoming environment for all of their employees.  Given the rapidly changing landscape in the EEOC and the areas of law it enforces, employers are encouraged to stay in communication with legal counsel prior to making any policy changes.

 

 

OMB Suspends New EEO-1 Reporting Data Requirement

Employers throughout the nation who have been preparing to comply with the revised Employer Information Report (EEO-1) will be pleased to learn that the Office of Management and Budget’s Office of Information and Regulatory Affairs (“OIRA”) has indefinitely suspended the new report’s compliance date.

By way of background, as explained hereEEOC Picture, in February 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced a major revision to the EEO-1 Form reporting requirements, requiring all employers with more than 100 employees (and federal contractors with more than 50 employees) to submit compensation data based on certain demographic information such as gender, race, and ethnicity to the EEOC beginning in 2017.  Following that announcement, employers in all industries voiced numerous concerns about those changes, including the increased time and money that would be required to complete the new report, confidentiality issues, data security and privacy issues, the range of false positives that would result from the submission of pay data, and the enforcement actions that would inevitably arise from these false positives.  Although the EEOC thereafter issued a “revised” Final Rule in September 2016, the revised rule changed very little from the original, aside from moving the due date for submission to March 31, 2018.

However, on August 29, 2017, the OIRA stopped the new EEO-1 rule in its tracks, stating in a memorandum to the EEOC that among other things, it is “concerned that some aspects of the revised collection of information lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.”

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