Workforce Bulletin

As featured in #WorkforceWednesday:  This week, we look at a range of recent anti-harassment and gender equity updates from across the country.

For the second time this spring, a California statute designed to promote diversity in corporate boardrooms was blocked by a state judge. On May 13, 2022, in Crest v. Padilla I (Los Angeles Superior Court Case No. 19STCV27561) (Crest), Los Angeles Superior Court Judge Maureen Duffy-Lewis ruled that California Corporations Code Section 301.3 (SB 826), which requires publicly listed corporations in California to have women on their boards, violates the Equal Protection Clause of California’s Constitution. California Secretary of State Shirley N. Weber has since announced plans to appeal the decision, stating that “SB 826 was passed not to remove men from the boardroom, but simply to make room for highly qualified women who have been excluded from the corporate board selection process for decades.”

Over the past several years, workplace artificial intelligence (“AI”) tools have matured from novel to mainstream.  Whether facilitating attracting, screening, hiring, and onboarding job applicants or charting the career path or promotability of current employees, workplace AI tools will likely become more prevalent.  Legislators and administrative agencies have taken note and are in various stages of examining and regulating these tools, with the primary goal of ensuring that they do not violate federal and state laws prohibiting workplace discrimination.

As featured in #WorkforceWednesday: This week, we focus on compliance and transparency when using artificial intelligence (AI) tools in employment decision-making.

Prompted by the widespread adoption and use of video-conferencing software following the COVID-19 pandemic, many employers have shifted toward video interviews to evaluate potential hires. Even as employers have begun to require in-office attendance, the widespread use of video interviewing has continued, because it is a convenient and efficient way to evaluate applicants. Some of the video interviewing tools used by employers incorporate the use of artificial intelligence (AI) in an effort to maximize the effectiveness of the interview process. Often, employers contract with third-party vendors to provide these AI-powered interviewing tools, as well as other tech-enhanced selection procedures.

As featured in #WorkforceWednesday:  This week, we look at updated regulations in California and New York City and at the U.S. Department of Labor (DOL).

On Thursday, May 12, 2022, New York City Mayor Adams signed the bill (previously described here) amending New York City’s new law that requires employers to list wage or salary ranges on job advertisements. Most significantly, among other changes, the amendment pushes the effective date of the law from May 15, 2022, to November 1, 2022.

Where is the impact of alleged employment discrimination? That is the question when evaluating whether a remote worker can assert claims under the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”), according to a recent decision by U.S. District Judge Edgardo Ramos. Relying on state law, Judge Ramos concluded that the basis for subject matter jurisdiction has not changed during the COVID-19 pandemic and remains grounded in New York’s “Impact Test,” meaning courts will look to where the impact of alleged discriminatory conduct was felt. Thus, regardless of whether an employer is located in New York, the anti-discrimination laws are intended to protect employees who live or work in New York.

As featured in #WorkforceWednesday:  This week, we examine best practices for crafting flexible work arrangement policies. Requests to continue working remotely or with flexibility remain high as we emerge from the COVID-19 pandemic.

Employees who resign from work, sue their employer, and assert “constructive discharge” shoulder a heavy burden to demonstrate that they had no choice but to resign. A recent decision of the Massachusetts Appeals Court, Armato v. Town of Stoneham, shows just how heavy that burden is.