As we discussed in an earlier post, the Federal Trade Commission (“FTC”) issued a final rule prohibiting post-employment non-compete clauses for workers in the United States. FTC’s final rule takes effect on September 4, 2024. However, the rule is currently being litigated in several jurisdictions, including applications for preliminary injunction to prevent it from going into effect.

One such case is Ryan LLC v. Federal Trade Commission (3:24-cv-986), filed in the United States District Court for the Northern District of Texas. On July 3, Judge Ada Brown issued an order granting a preliminary injunction for the plaintiffs following a determination that they are substantially likely to prevail on the merits of their challenge to the FTC’s Non-Compete Rule. Judge Brown’s opinion cited to a recent U.S. Supreme Court decision (Loper Bright Enterprises v. Raimondo), in which the Supreme Court overturned a longstanding precedent, known as the Chevron doctrine, where judicial courts deferred to an administrative agency’s interpretation of ambiguous laws which the agency was charged with enforcing.

In the coming weeks, the parties in the Ryan case will fully brief a motion for summary judgment and Judge Brown has stated her intent to decide on the merits of the case by August 30, 2024.

Furthermore, another challenge to the FTC’s non-compete rule is pending in the United States District Court for the Eastern District of Pennsylvania, ATS Tree Services, LLC v. Federal Trade Commission, et al. (2:24-cv-1743). A decision in the ATS case may be issued in the next few weeks.

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Despite pending litigation, in the next few weeks, employers and business entities should proactively review their policies, procedures and agreements for any non-compete clauses and determine which employees will need to be notified by September 4, 2024 that their non-compete are no longer binding, should the FTC’s rule is not enjoined or ruled unconstitutional. Additionally, those policies and agreements containing non-compete clauses will need to be revised to ensure compliance with the FTC’s final rule.

We will provide updates as matters develop with respect to FTC’s final rule and its pending litigation.

For further information or guidance on revising your policies, procedures, and agreements, please contact David Paseltiner, Robert Londin or Rose Egan.

The New York labor law requires every employer, no matter its size (including a family business), to adopt a sexual harassment prevention policy that meets or exceeds the minimum standards set by New York State. Every such policy must include examples of prohibited conduct, a complaint form, procedures for investigation of any complaint, information on all available forums for adjudicating sexual harassment complaints and provide annual interactive training sessions for all employees located in New York State.

All employees (including minor employees) must receive annual sexual harassment prevention training. The annual trainings must be interactive, including requiring the employees to respond to questions based on the training and allowing employees to ask questions. The trainings do not need to be live to be interactive.  Training sessions can be provided online with a question and answer sheet that employees can complete (either electronically or in hard copy) and submit to the employer. Employers must answer employee questions in a timely manner, if the training is not live. Any employees under the age of 14 may receive a simplified version of training and policy, though it must still meet the minimum state requirements. Employers should retain records of the annual trainings and employee completion.

Recently, New York State updated the model prevention policy requirements, including an expanded number of foreign languages in which employers must provide notices, claim forms and trainings. The foreign languages now included are Bengali, Chinese, Hatian-Creole, Korean, Italian, Polish, Russian, and Spanish. At the time of hire and during annual training sessions, employers must provide the sexual harassment prevention policy in writing, in English and in any other primary language indicated by an employee to his or her employer. New York State has provided written training information and case studies in these languages, which are available here.

Additionally, the law protects employees from harassment by third parties, including customers, clients, outside vendors, independent contractors and gig workers. Thus, the law requires family businesses and households that employee even one domestic worker (such as a nanny or housekeeper) to adopt a sexual harassment prevention policy and related annual training.

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For further information or guidance on revising your policies and procedures, please contact David Paseltiner or Rose Egan.

President Biden signed into law the “Providing Urgent Maternal Protections for Nursing Mothers Act” (“PUMP Act”) on December 29, 2022.   The PUMP Act expands employer obligations under the Fair Labor Standards Act (FLSA) and addresses the needs of nursing women in the work force.  It provides that for up to one year, an employer must allow an employee who is nursing a child to have reasonable break time to express breast milk.

A nursing employee who wants to express milk while at work has a right to do so in private.  Pursuant to the Act, a nursing employee is entitled to a place that is shielded from view and free from intrusion by coworkers or the public to express milk.  A bathroom is not considered a permissible location.  Employers may create permanent, dedicated spaces for employees to express breast milk, but are not required to do so.  If the space provided by the employer is not a dedicated space for use by nursing employees, in order to be compliant with the law, the private space must be made available when the employee needs it.

The frequency and duration of the breaks needed by an employee to express milk depend on factors related to the specific employee.  There is no requirement that a nursing employee be paid for the time spent while on her break provided that she is completely relieved from her work duties during the break, otherwise she must be compensated as work time.  In addition, if the employer provides compensated breaks for its employees, an employee who uses her break time to express milk must be compensated in the same way as other employees.  Moreover, if the employee is at least partially working during her break, the time is considered paid working time for purposes of calculating minimum wage and overtime.

All employers covered by the FLSA must comply with the PUMP Act requirements except that an employer with fewer than fifty employees is not subject to the law’s break time requirement if it can demonstrate that compliance would impose an undue hardship causing significant difficulty or expense, which is often difficult to do.

While the PUMP Act is a federal law which provides certain protections and rights for nursing workers, employers need to also be aware that New York provides similar, and in some instances greater, protections under state law.  For example, New York Labor Law Section 206-c also requires an employer to provide a nursing mother with break time to express breast milk at work.  While the PUMP Act covers nursing employees for a period of one year, New York expands the period to three years. The Labor Law also requires that the space be in close proximity to the work area, and, at minimum, have a chair, a working surface, nearby access to clean running water and, if the workplace is supplied with electricity, an electrical outlet.  If the workplace has access to refrigeration, the employer must allow access to it for the purpose of storing the expressed milk.  The state law applies to all public and private employers in New York State, regardless of the size or nature of their business.

Finally, it is a violation of both the federal and state law to discriminate against an employee for requesting or receiving break time to express breast milk.

For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact Stanley A. Camhi at scamhi@jaspanllp.com.

The Gender Expression Non-Discrimination Act (“GENDA”) was signed into law by Governor Cuomo in January 2019.  The law added gender expression and gender identity to the State’s Human Rights Law as a protected class and prohibits unlawful discrimination in employment, housing, and public accommodations based on a person’s gender identity or expression.

GENDA defines gender identity or expression “as a person’s actual or perceived gender related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”  The law also recognizes “gender dysphoria”, a medical condition in which a person has psychological distress resulting from an incongruence between one’s sex assigned at birth and one’s gender identity (DSM-5-TR), as a disability.  So, for example, in the context of employment, a person suffering from gender dysphoria may be entitled to a reasonable accommodation at work, unless it would impose an undue hardship on the employer.

Under the law New Yorkers have the right to use their requested name regardless of their appearance, medical history or the sex indicated on their identification, and it is a violation for an employer or other entity covered by the law to refuse to use the person’s requested name, pronoun, or title. Thus, for example, if Rose, a transgender individual, wishes to be referred to by a different name, an employer must honor the request.

It is also a violation of the law to impose unequal terms, conditions or benefits based on a person’s gender identity or expression.  Other prohibited conduct include:

  • Refusing to allow individuals to use facilities consistent with their self-identified gender regardless of the person’s sex assigned at birth.
  • Requiring a person to use a single-occupancy bathroom because they are transgender when multi-occupancy facilities are available.
  • Imposing appearance standards based on sex stereotypes.
  • Denying equal opportunities for advancement because of a person’s gender identity or expression.
  • Making threatening or humiliating comments or engaging in name calling because of a person’s gender identity or expression.
  • Refusing to hire a person because of their gender identity or expression.
  • Refusing to rent an apartment to a person because of their gender identity or expression.

These, of course, are only a few examples of how the law may impact upon your business operations.  It is important that this change in the law be kept in mind and implemented in order to avoid potential liability.

For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact Stanley A. Camhi at scamhi@jaspanllp.com.

As discussed in my recent blog, the National Labor Relations Board (NLRB) in its McLaren Macomb  decision has ruled that confidentiality clauses which prohibit an employee from disclosing the terms of her or his severance agreement and clauses that prohibit an employee from disparaging their employer as conditions to receipt of a severance payment violate such employee’s rights under sections 7 (essentially the right to organize) and 8(a)(1) (prohibiting employers from interfering with section 7 rights) of the National Labor Relations Act (NLRA).

The NLRB decision left unanswered several questions regarding its interpretation and application, creating uncertainty for both employers and employees regarding the inclusion of confidentiality and non-disparagement clauses in severance agreements. To address these questions and provide some guidance on how the NRLB will enforce the ruling, General Counsel (GC) Jennifer Abruzzo has released Memo 23-05 . The Memo provides instructions to the NLRB’s regional offices on how to issues arising  from the  McLaren Macomb decision. Set forth below is a review of certain of the more important commentary included in the Memo.

Can Severance Agreements Still be Provided to Employees?

Yes. The McLaren Macomb  decision does not prohibit severance agreements. However, as stated in the Memo, “lawful severance agreements may continue to be proffered, maintained, and enforced if they do not have overly broad provisions that affect the rights of employees to engage with one another to improve their lot as employees.”

Are All Confidentiality Provisions Now Prohibited in Severance Agreements?

No. The Memo confirms that “[c]onfidentiality clauses that are narrowly-tailored to restrict the dissemination of proprietary or trade secret information for a period of time based on legitimate business justifications may be considered lawful.” Employers should note, however, that confidentiality clauses which have a “chilling effect that precludes employees from assisting others about workplace issues and/or from communicating with the Agency, a union, legal forums, the media or other third parties” are unlawful.

Are All Non-Disparagement Provisions Now Prohibited in Severance Agreements?

Again, no. As stated in the Memo, severance agreements may include “a narrowly-tailored, justified, non-disparagement provision that is limited to employee statements about the employer that meet the definition of defamation as being maliciously untrue, such that they are made with knowledge of their falsity or with reckless disregard for their truth or falsity, may be found lawful.” In other words, a clause which prohibits an employee from making negative, but truthful, statements or from expressing a negative opinion regarding an employer or its products will violate the McLaren Macomb  decision.

Is the Ruling Retroactive?

As noted in our prior blog, NLRB decisions are generally presumed to be retroactive unless retroactivity would result in an injustice or be unfair to the employer. The Memo notes that if the NLRB had determined that there was manifest injustice requiring prospective application, it would have stated so in decision, such that retroactivity does apply to the rulings. The Memo further stated that while an unlawful proffer of a severance agreement may be subject to the six-month statute of limitation noted in our blog, “maintaining and/or enforcing a previously-entered severance agreement with unlawful provisions that restrict the exercise of Section 7 rights continues to be a violation and a charge alleging such beyond the Section 10(b) period would not be time-barred.”

Does a Prohibited Confidentiality or Non-Disparagement Clause Invalidate the Entire Agreement?

In a bit of good news for employers, the Memo states that such clauses which are found to be unlawful will likely not invalidate the entire agreement. The Memo notes that the NLRB “generally make decisions based solely on the unlawful provisions and would seek to have those voided out as opposed to the entire agreement, regardless of whether there is a severability clause or not.”

How Does McLaren Macomb Apply to Supervisors?

As noted in our blog, certain categories of employees are not covered by section 7 of the NLRA, most importantly supervisors and managers with the authority to hire, fire, set pay and discipline workers. While the Memo confirms that supervisors are generally not protected by the NLRA, the NLRA does protect a supervisor who is retaliated against, such as being fired, because he or she is refusing to act on their employer’s behalf in committing an unfair labor practice against employees, in other words, they are refusing to violate the NLRA per their employer’s directives. Accordingly,  it would violative the NLRA for an employer to retaliate against a supervisor who refuses to proffer an unlawfully overbroad severance agreement.

What if the Employee Requests the Prohibited Provision?’

The Memo provides that the identity of the party requesting an overly broad provision is irrelevant – the NLRB “protects public rights that cannot be waived in a manner that prevents future exercise of those rights regardless of who initially raised the issue.”

What Actions Should Employers Take?

In addition to the actions mentioned in our prior blog, employers should not seek to enforce any confidentiality or non-disparagement provisions prohibited by the McLaren Macomb  decision.  The Memo also states that while such action may not cure a technical violation of an unlawful proffer of a severance agreements, employers may seek to remedy such violations by contacting employees subject to severance agreements with overly broad provisions and informing them that such provisions are void and that the employer will not seek to enforce such provisions or pursue any penalties for breaches of them. Such conduct could form the basis for consideration of a merit dismissal if a meritorious charge solely alleging an unlawful proffer is filed by an employee.

Final Thoughts 

As noted in our prior blog, the  McLaren Macomb decision remains subject to appeal, and further direction from the courts may be forthcoming on this issue, which may differ from the decision itself or the interpretations set forth in the Memo.  In addition, the Memo does not have the force of law and is not binding on any party other than the NLRB Regions. Unless and until further action is taken with regard to the decision, the memo is helpful in understanding how the NLRB will most likely apply the McLaren Macomb decision to severance agreements, and employers should refer to the decision and the Memo in enforcing existing, and drafting new, severance agreements and other compliance efforts.

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For further information on the Memo or guidance on drafting or revising your severance agreements, please contact David Paseltiner.

It has long been common practice for employers to require a terminated employee to sign a separation agreement as a condition to receiving a severance payment. Such agreements usually include, among other things, the amount and timing of such payments, a general release in favor of the employer (including specific age discrimination waivers if the employee is 40 years of age or older), and non-compete, non-solicitation and confidentiality provisions (or confirm existing such provisions). In addition, such agreements have often required the employee to not disparage the employer and its business and to keep the terms of the settlement confidential (although confidentiality provisions in cases involving resolution of harassment or discrimination claims have been prohibited in some jurisdictions).

                In a recent decision, the National Labor Relations Board (NLRB) has ruled that confidentiality clauses that prohibit an employee from disclosing the terms of her or his severance agreement and clause that prohibit an employee from disparaging their employer as conditions to receipt of a severance payment violate such employee’s rights under sections 7 (essentially the right to organize) and 8(a)(1) (prohibiting employers from interfering with section 7 rights) of the National Labor Relations Act (NLRA). Set forth below is a discussion of this ruling, its applicability, and certain related issues.

Which Employers and Employees are Covered by the Ruling? Which are Not Covered?

                The NLRB’s authority extends to most US private sector employers and this ruling applies to both unionized and non-unionized employees.

Certain categories of employers are not subject to the authority of the NLRB, namely Federal, state and local government agencies (including public schools, libraries and parks), railways and airlines.

In addition, certain categories of employees are not covered by section 7 of the NLRA, most importantly supervisors and managers with the authority to hire, fire, set pay and discipline workers. In addition, independent contractors, agricultural and domestic workers, and anyone employed by a parent or spouse are not covered by the NLRA. As a result, this ruling does not apply to these individuals.

Are All Confidentiality Provisions Now Prohibited in Severance Agreements?

                No. Even if the employee in question is covered by this ruling, the ruling applies only to disclosure of the agreement’s terms and the terms and conditions of the employee’s job (such as wages, hours, health and safety issues, and other matters pertaining to employment). The severance agreement can still prohibit disclosure of trade secrets and other proprietary and confidential information.

Is the Ruling Retroactive?

                The ruling does not specify whether it is to be applied retroactively. NLRB decisions are generally presumed to be retroactive unless retroactivity would result in an injustice or be unfair to the employer. In this case, as the confidentiality and non-disparagement provisions were permitted by two 2020 NLRB decisions, a good case could be made that it would be unfair now to penalize employers who relied on that decision. However, the NLRB normally applies a six-month window to bring violations of the NLRA to the NLRB, and it could apply the decision to a severance agreement containing these clauses which was signed or enforced during this period.

What Actions Should Employers Take?

                First, unless and until the NLRB ruling is reversed (it is subject to appeal) or overruled, employers should not include provisions pertaining to (a) confidentiality of severance agreement terms, (b) confidentiality regarding terms and conditions of employment, or (c) non-disparagement of the employer, in severance agreements being given to employees subject to the NLRA (as described above).

                Second, review general confidentiality provisions in such agreements to ensure that they are not overly broad. Employers are advised to include language in general confidentiality provisions stating that such clauses do not restrict or impede the employee from exercising protected rights (including under section 7 of the NLRA) to the extent that such rights cannot be waived by agreement or from complying with any applicable law or regulation or a valid order of a court of competent jurisdiction or an authorized government agency.

                Third, whether an employee falls into the supervisor or manager category can be a grey area. If there’s any uncertainty with regard to a specific employee, consider whether the confidentiality and non-disparagement clauses described above are essential or can be eliminated.

                Finally, keep in mind when setting the amount of severance being offered that employees covered by this ruling cannot be prohibited from disclosing this amount to other employees. This is not all that critical if your company has a fixed severance plan or program but can be a concern if amounts are set on a case-by-case basis. An employer who gives a generous severance package to one employee may need to be prepared to justify why that package should not be provided to subsequent employees.

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                For further information on this ruling or guidance on drafting or revising your severance agreements, please contact David Paseltiner.

“This bill seeks to protect workers from corporations and their agents that fail to comply with safety protocols by amending the penal code to create new offenses and substantially increasing the fines that can be imposed upon a corporate defendant convicted of certain crimes.”[1] The bill has not yet been signed by Governor Hochul.

“Carlos’ Law is named for 22-year-old Carlos Moncayo, an Ecuadorean immigrant . . .  who was buried alive at a construction site in New York City’s meatpacking district in April 2015 while working in an unreinforced 13-feet-deep trench that had been cited by safety inspectors.”[2] “On the morning of April 6, 2015, according to the New York Times, an inspector visited the site, noticed a trench without proper earth-retaining equipment, and issued a warning. Mere hours later, the walls of the trench collapsed on Moncayo, who was pronounced dead on the scene.”[3]

The contractor “was convicted of manslaughter in the second degree, criminally negligent homicide, and reckless endangerment. . . . But despite these criminal convictions, the Moncayo family, who faced the tragic loss of a son and brother, reportedly did not receive any compensation.”[4] The Occupational Safety and Health Administration (OSHA) fined the contractor approximately $10,000 (the maximum fine possible) for this negligence.”[5]

The proposed bill would raise the maximum fine for criminal liability from $10,000 to no less than $500,000, or, in the case of a misdemeanor, no less than $300,000.[6]   The proposed bill explains that:

Workplace deaths and serious injuries continue to be commonplace in the construction industry. Of the more than 400,000 workplace fatalities since Congress, enacted the Occupational Safety and Health Act (OSH Act), fewer than 80 have been prosecuted, and only about a dozen employers have been convicted. That is roughly 1-conviction for every 33,000 fatalities. In the few cases that have resulted in conviction, the penalty was only $1,000 on average. Under the OSH Act, the criminal penalty is considered as a Class B misdemeanor, and carries, at most, up to 6 months imprisonment. The weakness of OSH’s punitive measures has therefore failed to encourage safer work environments.[7]

“This bill increases punitive measures so that corporations and their agents who ignore or fail to follow safety protocols and procedures and put workers at risk are less likely to write off serious workplace injuries as a minimal cost of doing business, and more likely to give workplace safety the serious attention it requires.”[8]

It is hopeful that this proposed bill will encourage contractors to maintain a safe construction site. The information in this article is subject to change depending on whether the proposed bill is signed by the Governor.  We will keep our readers informed with respect to any new developments.

The material in this article is meant only to provide general information and is not a substitute nor is it legal advice to you. In the event you need legal assistance, contact Christopher E. Vatter at cvatter@jaspanllp.com.

[1] https://www.nysenate.gov/legislation/bills/2021/S621

[2] https://www.nysenate.gov/newsroom/in-the-news/jessica-ramos/what-happened-carlos-law

[3] Id.

[4] Id.

[5] Id.

[6] https://www.nysenate.gov/legislation/bills/2021/S621

[7] Id.

[8] Id.

Effective as of June 9, 2022, the Administrative Code of the City of New York[1] was amended to require that “certain businesses that supply their employees to clients for the performance of construction work or manual labor on the client’s construction site, in exchange for compensation, be licensed.”[2]

These businesses are defined as “construction labor providers”[3].  “Construction Labor Providers, also known as body shops or temp agencies, are businesses that supply temporary workers to third-party clients for non-union construction work or manual labor.”[4]  Notwithstanding, “[t]he term ‘construction’ in this bill explicitly excludes handyman work.”[5] A license is also not required for employment agencies, professional employer organizations, general contractors and subcontractors (as defined in §20-564 of the NYC Administrative Code[6]).

As explained by Commissioner Vilda Vera Mayuga of the  Department of Consumer and Worker Protection, ‘“[t]emporary construction workers are often immigrants or individuals reentering the workforce and vulnerable to mistreatment and fear retaliation for reporting abuse.”’[7] This law is designed to ensure that: ‘“businesses employing these workers are licensed, inform [Department of Consumer and Worker Protection] of their business operations, maintain records, and provide their workers with information about their rights and responsibilities, which will increase transparency and safety in the industry.”’[8]

“Applying for a license would require certain signed statements and select information on business operations, and each covered business would have to supply their workers with a series of notices: on their rights as workers covered by this bill; training and certifications the employees would need to perform their work duties; and information on the employees’ work assignments.” [9]

“Businesses that violate the bill’s subchapter would also be subject to penalties. Employees of the businesses aggrieved by a violation of the bill’s subchapter would be able to initiate a private right of action against their employers for violations of the bill, including for retaliation against employees for availing themselves of rights provided by this bill.”[10]

This is another issue to be considered when performing construction work in New York City. Jaspan Schlesinger LLP can help you navigate these issues and other construction law related matters. If you need assistance, please contact Christopher E. Vatter at cvatter@jaspanllp.com.

 

[1] 2022 N.Y.C. Local Law No. 150, N.Y.C. Admin. Code §§150-564.

[2] https://www1.nyc.gov/site/dca/about/new-laws-rules.page

[3] A construction labor provider “means a person who employs and supplies a covered construction worker to a third party client for the performance of construction work or manual labor for a construction project of such client on a site in the city, in exchange for compensation from such third party client, provided that the completion of such project is directed by such client or such client’s contractor and not such person.” (2022 N.Y.C. Local Law No. 150, N.Y.C. Admin. Code §§150-564.1).

[4] https://www1.nyc.gov/site/dca/media/pr060922-DCWP-Begins-Licensing-Construction-Labor-Providers.page

[5] https://www1.nyc.gov/site/dca/about/new-laws-rules.page; see also NYC Administrative Code §20-564 and 28-105.4.2.1/

[6] https://www1.nyc.gov/site/dca/businesses/license-checklist-construction-labor-provider.page

[7] https://www1.nyc.gov/site/dca/media/pr060922-DCWP-Begins-Licensing-Construction-Labor-Providers.page

[8] Id.

[9] https://legistar.council.nyc.gov/LegislationDetail.aspx?ID=4966517&GUID=23CA198A-0612-439D-AB54-14065535D735&Options=ID|Text|&Search= see also Construction Labor Provider License Application Checklist.

https://www1.nyc.gov/site/dca/businesses/license-checklist-construction-labor-provider.page#:~:text=Who%20Must%20Have%20a%20Construction,worksites%20in%20exchange%20for%20compensation.

[10]  https://www1.nyc.gov/site/dca/about/new-laws-rules.page#:~:text=require%20certain%20businesses%20that,provided%20by%20this%20bill.

Many employers use computer-based technology such as artificial intelligence, software, and algorithms throughout the hiring and employment process. Examples of the types of tools used in the hiring process include resume-screening software, chatbots, and digitized interviews. These tools have replaced many basic human resource tasks in employment recruitment and have streamlined the hiring process.

While such technology-enabled employment selection promotes efficiency and cost-savings, employers must ensure that its use is not in violation of the Americans with Disabilities Act (“ADA”). The ADA is a federal civil rights law that prohibits employers, employment agencies, labor organizations, and joint labor-management committees with 15 or more employees from discriminating based on disability.[1]

If a computer-based tool improperly “screens out” or rejects an applicant for employment who has a disability, the employer may be in violation of the ADA. This is the case whether or not the rejection was intentional or unintentional. For instance, digitized interviews use software that assesses an applicant’s tone of voice, speech patterns, and facial movements to evaluate the applicant’s fit for the role. However, if the applicant has a speech impediment, the software may not evaluate the applicant effectively and may automatically reject the applicant due to a low evaluation rating.

Employers should be mindful of tools that indicate they are “bias free” as this designation may be misleading. “Bias free” tools typically mean that steps have been taken to prevent discrimination under Title VII, based on race, sex, national origin, color, or religion.[2] However, the steps required to prevent disability discrimination are unique based on the disability and must be distinguished from the steps required to prevent Title VII discrimination.

Employers who choose to use AI in the hiring process can and should take steps to reduce the chances of prejudicing individuals with disabilities. For example:

  • Employers should develop and select tools that measure abilities or qualifications that are truly necessary for the job, including for individuals who are entitled to a reasonable accommodation.
  • Employers must provide a reasonable accommodation to qualified individuals with disabilities, unless doing so would cause undue hardship. Therefore, employers must provide clear and accessible instructions for requesting such accommodation to those who are being evaluated. The ADA permits employers to request reasonable medical documentation in support of a request for reasonable accommodation, when necessary.[3]
  • Employers should clearly describe, in accessible formats, what traits the AI will be assessing and how, so applicants will better understand when they may need to request a reasonable accommodation.
  • Decision-making tools that rate an applicant’s ability by measuring the similarity between an applicant’s personality and the typical personality for successful individuals holding the open position should be avoided.
  • Prior to purchasing employment technology that is administered by an outside vendor, employers should request that the vendor forward all requests for accommodations to be processed by the employer in accordance with the ADA, or enter into an agreement with the outside vendor to provide reasonable accommodations on the employer’s behalf, in accordance with the ADA. It is important to note that any potential liability extends to the employer even if the tool is administered and/or developed by an outside vendor.

Employers must be able to navigate the pitfalls of employment selection technology and ensure that these tools are used to enhance the hiring process to build an inclusive and accessible workforce.

For further information or guidance on how this law may affect your business, please contact Tyleana K. Venable at tvenable@jaspanllp.com.

[1] 42 USC 12101 et seq.

[2] https://www.eeoc.gov/laws/guidance/americans-disabilities-act-and-use-software-algorithms-and-artificial-intelligence

[3] https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada

In the latest Jaspan Schlesinger Labor and Employment Law blog, attorney Stanley A. Camhi discusses New York’s recent amendment to the New York Civil Rights Law.

On November 8, 2021, New York Governor Hochul signed into law an amendment to the New York Civil Rights Law creating a new section (§52-c) that took effect on May 7, 2022. The new law requires that employers with a place of business in New York State who engage in electronic monitoring of phone calls, e-mails, and internet use must now provide notice to their employees of such monitoring.

The New York law requires written notice (either paper or electronic) to be provided upon hire to all new employees if the business monitors and/or plans to monitor its employees, the receipt of which must be acknowledged by the employee in writing.  For current employees, the employer must post the notice “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”

The notice advising employees of the employer’s monitoring shall inform them that “any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.”

However, the amendment does not apply to processes that: (1) are designed to manage the type or volume of incoming or outgoing electronic mail or telephone voice mail or internet usage”; (2) “are not targeted to monitor or intercept the electronic mail or telephone voice mail or internet usage of a particular individual, and”; (3) “are performed solely for the purpose of computer system maintenance and/or protection.”

The Attorney General is authorized to enforce the provision.  Any employer who is found to be in violation of the new amendment is subject to a fine up to $500 for the first offense, $1,000 dollars for the second, and $3,000 for the third and each subsequent offense.

For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact Stanley A. Camhi at scamhi@jaspanllp.com.