Workforce Bulletin

We have long counseled employers using or contemplating using artificial intelligence (“AI”) algorithms in their employee selection processes to validate the AI-based selection procedure using an appropriate validation strategy approved by the Uniform Guidelines on Employee Selection Procedures (“Uniform Guidelines”).  Our advice has been primarily based on minimizing legal risk and complying with best practices.  A recently updated Frequently Asked Questions (“FAQ”) from the Office of Federal Contract Compliance Programs (“OFCCP”) provides further ...

Our colleagues Maxine Neuhauser, Nathaniel M. Glasser, Denise Dadika, & Anastasia A. Regne, at Epstein Becker Green have recently published a post on the Health Employment and Labor blog that will be of interest to our readers in the technology industry: “New Jersey’s Highest Court to Decide Whether Employers Are Required to Accommodate Medical Marijuana Use.”

Following is an excerpt:

In Wild, which we discussed in a recent client alert, plaintiff Justin Wild (“Wild”) alleged that his employer, Carriage Funeral Holdings (“Carriage ...

The recently proposed amendment to the California Consumer Privacy Act (CCPA) should be a wake up call to those employers who are not already actively planning for the January 1, 2020 compliance deadline.

The amendment reaffirms that employers must (i) provide employees with notice of the categories of personal information collected and the purposes for which the information shall be used at or before collection; and (ii) implement reasonable cybersecurity safeguards to protect certain employee personal information or risk employee lawsuits, including class actions seeking ...

Colorado has joined a growing movement of states in passing laws that provide greater protections to employees and job applicants. Among these are the Equal Pay for Equal Work Act and a ban the box law, which limits criminal history inquiries for job applicants. The following is a breakdown of Colorado’s newest employment laws and how their implementation may impact employers and employees alike.

Equal Pay

Effective January 1, 2021, the Equal Pay for Equal Work Act (the “Act”) will expressly prohibit employers from paying employees of different genders different wages for ...

Our colleague Amanda M. Gomez at Epstein Becker Green have recently published a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the technology industry: “Colorado Joins Wave of States to Offer Heightened Employee Protections.”

Following is an excerpt:

Additionally, employers that can demonstrate a good faith effort through proactive measures to comply with the Act may be able to mitigate liability should a claim arise. Similar to “safe harbor” provisions in equal pay laws in Massachusetts and Oregon, such ...

Our colleague Amanda M. Gomez at Epstein Becker Green have recently published a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the financial services industry: “Colorado Joins Wave of States to Offer Heightened Employee Protections.”

Following is an excerpt:

Additionally, employers that can demonstrate a good faith effort through proactive measures to comply with the Act may be able to mitigate liability should a claim arise. Similar to “safe harbor” provisions in equal pay laws in Massachusetts and Oregon ...

Our colleague Amanda M. Gomez at Epstein Becker Green have recently published a post on the Hospitality Labor and Employment Law blog that will be of interest to our readers in the retail industry: "Proposed Regulation Prohibiting Gender Identity Discrimination Conforms Division of Human Rights’ Regulations to Executive Law."

Following is an excerpt:

After a long legislative battle, the New York State Gender Expression Non-Discrimination Act (“GENDA” or “Law”), which was signed into law and became effective on January 25, 2019, explicitly added ...

After a long legislative battle, the New York State Gender Expression Non-Discrimination Act (“GENDA” or “Law”), which was signed into law and became effective on January 25, 2019, explicitly added “gender identity or expression” as a protected class under the state’s non-discrimination laws. Now, under a proposed state regulation, the New York State Division of Human Rights (“DHR”) would amend its regulations, codified in NYCRR §466.13, prohibiting discrimination on the basis of gender identity, gender expression, and transgender status to conform ...

This Employment Law This Week^® Monthly Rundown discusses the most important developments for employers in July 2019. Both the video and the extended audio podcast are now available.

This episode includes:

• State Legislation Heats Up
• NLRB Overturns Another Long-Standing Precedent
• SCOTUS October Term 2018 Wraps Up
• Tip of the Week: How inclusion and trust can increase innovation in the workplace

See below to watch the full episode - click here for story details, the video, and the extended audio podcast.

Stay tuned: Sign-up for email notifications and subscribe to the ...

Many retail employers require their employees to agree to arbitrate employment-related disputes as a condition of employment. The United States Supreme Court has repeatedly emphasized that workplace arbitration agreements are enforceable according to their terms, and state law that restricts such enforcement is preempted by the Federal Arbitration Act (“FAA”). Notwithstanding those pronouncements, states, such as New York and New Jersey, have crafted legislation designed to nullify an employee’s agreement to arbitrate certain employment-related claims.

In response to the #MeToo movement, New York and New Jersey have enacted legislation banning workplace arbitration agreements covering sexual harassment and discrimination claims. On April 12, 2018, New York State, as part of its 2018-2019 budget, amended § 7515 of the New York Civil Practice Law and Rules (“CPLR”) to prohibit employers with four or more employees from incorporating mandatory, pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of sexual harassment. Additionally, any such clause in a contract entered into after the effective date of the law would be rendered null and void.

On June 19, 2019, the New York legislature passed a bill (which, as of the date of this post, has yet to be signed into law) that makes sweeping changes to New York’s harassment and discrimination laws. Among other things, the bill again amends § 7515 of the CPLR to ban mandatory pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of workplace discrimination generally, not just sexual harassment claims and renders any such clause null and void.

On March 18, 2019, New Jersey Governor Murphy signed legislation that declares unenforceable any “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment.” N.J.S.A. 10:5-12.7(1)(a).  The law further provides that “[n]o right or remedy under the [Law Against Discrimination], or any other statute or case law shall be prospectively waived.” N.J.S.A. 10:5-12.7(1)(b). Both provisions can be construed to prohibit the waiver of a right to a jury trial as required by an arbitration agreement.

Many observers have questioned whether these laws restricting arbitration would be preempted by the FAA. A recent decision in the Southern District of New York, Mahmoud Latif v. Morgan Stanley & Co. LLC, No. 18cv11528 (DLC), 2019 U.S. Dist. LEXIS 107020 (S.D.N.Y. June 26, 2019), confirms that state laws targeting enforcement of arbitration agreements are vulnerable to attack on FAA preemption grounds.

As discussed below, in Latif, the court held that New York’s ban on the arbitration of sexual harassment claims was unenforceable as preempted by the FAA. The court also stated, in a footnote, that the as yet unsigned June 19, 2019 New York legislation would be preempted by the FAA for the same reasons. Latif suggests that employers covered by the FAA can be more confident that their agreements seeking to arbitrate employment-related claims will be enforceable.