Workforce Bulletin

The past several years have witnessed a notable uptick in workplace artificial intelligence related legislation and agency enforcement attention, specifically focused on the infusion of AI or so-called automated decision-making tools. Colorado’s new Artificial Intelligence Act, for example, designates employment as a “high-risk” sector of AI applications and has heightened concerns of lawmakers and corporate executives. Lawsuits, such as Mobley v. Workday and Moffatt v. Air Canada, underscore the concerns of employment candidate screening, recruitment and conversational AI. Most recently, the US Equal Employment Opportunity Commission issued a Determination finding cause to believe the employer violated the Older Workers Benefit Act by using AI in a reduction in force that adversely impacted older workers. A complaint in the Southern District of New York against IBM and its spinoff technology company, Kyndryl, promptly followed.

Perhaps not surprisingly, over the past few years, the State of New York (“NYS”), following the lead of New York City, has introduced several bills that would regulate the use of AI infused decision-making tools.  One such bill, called New York Workforce Stabilization Act (“NYWFSA”) was introduced in May 2024 by Senators Michelle Hinchey and Kristen Gonzalez. They will likely re-introduce the NYWFSA during the upcoming January 2025 legislative session intending to “stabilize” New York’s labor market at a time when the deployment of AI may fundamentally alter the New York industrial landscape.

As featured in #WorkforceWednesday®: This week, we’re examining California Governor Gavin Newsom’s new deal that was brokered to amend the Private Attorneys General Act of 2004 (PAGA).  

Last week, Governor Newsom announced that California’s business and labor groups had come to an agreement to reform PAGA. Two legislative bills encompassing the agreed-upon PAGA reforms (AB 2288 and SB 92) were signed into law by Governor Newsom on July 1, 2024. Epstein Becker Green attorney Kevin Sullivan tells us more about the PAGA reforms, their potential impact on California employers, and who the likely winners and losers are.

New York State has long required employers to support working mothers by providing certain accommodations for nursing employees. Last year, the State imposed a written lactation accommodation policy requirement on all employers, following the lead of New York City and California (among other jurisdictions) [see our Insight on the lactation accommodation legislation here]. As of June 19, 2024, employers’ obligations have again expanded: all New York State employers must provide 30 minutes of paid break time for employees to express breast milk for their nursing child for up to three years following the child’s birth.

The obligations are prescribed by an amendment to the State’s breastmilk expression law, New York Labor Law § 206-C (the “Law”), which was enacted as part of a package of legislation accompanying the New York State Budget for Fiscal Year 2024-2025, signed into law on April 20, 2024 by New York Governor Kathy Hochul. Shortly before the Law took effect, the New York State Department of Labor (NYSDOL) published new materials under the headline “Breast Milk Expression in the Workplace,” including general information about the Law, a policy statement, information sheets for employees and employers, and frequently asked questions (FAQs).

The Supreme Court’s June 28 decision to overrule the 40-year-old case of Chevron U.S.A. v. Natural Resources Defense Council should not be cause for alarm. It is, however, likely to have implications for employers that are subject to the myriad of workplace laws administered by the United States Department of Labor, the National Labor Relations Board and other executive branch bodies.

Why the Buzz About Chevron?

For decades, courts have relied on the so-called Chevron doctrine—a mandate by which judges were required to defer to agency expertise when handling controversies surrounding Executive Branch policy, but that rule ended with Loper Bright Enterprises et al., v. Raimondo. While the categorical rejection of Chevron—as inconsistent with the responsibility of courts defined in the APA—went farther than most analysts expected, it should be noted, as Justice Neil Gorsuch’s concurrence makes clear, that the Supreme Court hasn’t decided a case on the basis of Chevron since 2016.

Recently, in Lewis v. Crochet et al., the United States Court of Appeals for the Fifth Circuit rejected an attempt by a plaintiff to use the crime-fraud exception to the attorney-client privilege to compel two lawyers’ production of attorney-client privileged documents and information, which they obtained during the course of an investigation they conducted for Louisiana State University in 2013.

Lewis arose out of a lawsuit filed by the plaintiff, an African American woman formerly employed as an assistant athletic director for LSU, claiming that LSU and individual LSU board members discriminated and retaliated against her after she experienced and witnessed numerous instances of racist and sexist misconduct from LSU’s then-head football coach. The privilege dispute came to a head when plaintiff sought to compel LSU’s production of information from the 2013 Title IX investigation into sexual harassment allegations by LSU students against the then-head coach. Those documents remained in the possession of the law firm that conducted the investigation. Attempting to overcome LSU’s assertion of the attorney-client privilege, plaintiff invoked the crime-fraud exception arguing that LSU sought to use its lawyers to fraudulently conceal the documents in violation of Louisiana law prohibiting, among other things, the concealment of public records. The trial court agreed and ordered disclosure, but on an appeal filed by the two lawyers that conducted the 2013 investigation, the Fifth Circuit reversed.

The Massachusetts appellate court decision in Tran v. Jennings Road Management, Corp., et al, gave the green light to an employee to pursue class action claims against her direct employer as well as a separate management company based on a finding that the two entities were “joint” employers. This decision, together with the 2021 Supreme Judicial Court case on which the appellate court relied, serves as a warning to employers that sharing administrative and human resources duties with “outside” consultants or other companies may expose both companies to unforeseen liability.

After granting the parties’ request to decide the sole issue of whether the management company could face potential liability, the trial court concluded that the plaintiff, Sakiroh Tran, was jointly employed by Herb Chambers BMW car dealership, her direct employer, as well as Jennings Road Management Corp., a management company owned and controlled by Herb Chambers himself. Late last week, the Massachusetts Appeals Court affirmed the trial court’s decision citing the “totality of the circumstances” test set forth in Jinks v. Credico (USA) LLC, 488 Mass. 691, 692 (2021). This ruling paves the way for plaintiff to litigate her class action claims against multiple defendants.

For employers doing business in New York, the “Freelance Isn’t Free” Act (the “Act”) signed into law by Governor Kathy Hochul in March of this year may have stirred up memories of the New York City ordinance enacted just a few years ago by the same name. Both laws establish protections for freelance workers that aim to ensure that they receive timely compensation for all services performed. The namesake state law, however, does not impose obligations identical to those required by the city-level ordinance. Moreover, some not well-publicized legislative shuffling has caused confusion about the Act and its applicability statewide.

Wait, Didn’t This Happen Already?

Earlier this year, we wrote about the Act, anticipating an effective date of May 20, 2024. However, two days after our publication, the New York State Senate took up a bill to amend the Act by removing its provisions from the New York Labor Law— which is enforced by the New York State Department of Labor (“NYSDOL”)—and codifying it instead as Article 44-A of the New York General Business Law—which is enforced by the state’s Attorney General. The governor signed this legislation on March 1, thereby bumping the Act’s effective date to August 28, 2024.

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.