Hunton Employment & Labor Perspectives

On October 30, 2023, President Biden issued a wide-ranging Executive Order to address the development of artificial intelligence (“AI”) in the U.S.  Entitled the Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence, the Order seeks to address both the “myriad benefits” as well as what it calls the “substantial risks” that AI poses to the country. It caps off a busy year for the Executive Branch in the AI space. In February the Equal Employment Opportunity Commission published its Strategic Enforcement Plan highlighting AI ...

As of late, it seems we can hardly go a day without hearing about the rise of artificial intelligence (“AI”) and its potential to disrupt all manner of industries.  But awareness of AI’s potential implications to our careers has only recently hit the mainstream.  Many employees may be surprised to learn that a number of employers have already been using AI to make employment decisions for some time, especially in the hiring process.  And the number of employers using AI in the workplace has been growing rapidly.  Some employers are even using AI to make promotion decisions.

Background

On January 10, 2023, the Equal Employment Opportunity Commission (“EEOC”) published a draft of its Strategic Enforcement Plan (“SEP”) in the Federal Register, which outlines the enforcement goals for the Commission for the next four years. While the Agency aims to target a number of new areas – such as underserved workers and pregnancy fairness in the workplace – it is notable that it listed as priority number one the elimination of barriers in recruitment and hiring caused or exacerbated by employers’ use of artificial intelligence. 

On Monday, October 31, National Labor Relations Board General Counsel Jennifer Abruzzo issued GC Memo 23-02, “Electronic Monitoring and Algorithmic Management of Employees Interfering with the Exercise of Section 7 Rights.”  Specifically, the Memo seeks to address the growing employer use of “a diverse set of technological tools and techniques to remotely manage workforces.”  Examples of these technologies include wearable devices, security cameras, GPS tracking devices, keyloggers, and audio recordings.

It is no secret that legislators and regulatory agencies have taken note of companies’ increasing reliance on artificial intelligence (“AI”).  In the employment context, vendors market AI as an efficiency tool that can streamline HR processes and guard against human bias and discrimination.  But as we have previously blogged, undisciplined use of AI may accelerate or introduce discrimination into the workplace.

The EEOC recently issued long awaited guidance on how an employer’s use of software, algorithms, and artificial intelligence will be treated by the Commission under the Americans with Disabilities Act (ADA). In issuing this guidance, the Commission focused on employers administering software that uses algorithmic decision-making or artificial intelligence in making employment decisions before and during employment. The Commission outlined three general areas in which the use of such technology may violate the ADA: (1) an employer not providing a reasonable ...

Earlier this month, the Equal Employment Opportunity Commission (EEOC) held a webinar on artificial intelligence (AI) in the workplace.  Commissioner Keith Sonderling explained that the EEOC is monitoring employers’ use of such technology in the workplace to ensure compliance with anti-discrimination laws. The agency recognizes the potential for AI to mitigate unlawful human bias, but is wary of rapid, undisciplined implementation that may perpetuate or accelerate such bias.  Sonderling remarked that the EEOC may use Commissioner charges—agency-initiated investigations unconnected to an employee’s charge of discrimination—to ensure employers’ are not using AI in an unlawful manner, particularly under the rubric of disparate impact claims.

With the age of artificial intelligence (AI) unfolding, products aimed at automating the recruiting and hiring process are hitting the market with increasing frequency.

Companies have been utilizing AI for tasks such as screening resumes, and even interviewing candidates and assessing whether they will be successful employees.  These automated tools range from algorithms that “weed through” resumes to personality assessments and biometric analyses that employ AI to analyze a candidate’s facial expressions, body language, voices, and inflections in video interviews.

Imagine a future in which Artificial Intelligence (“AI”) does the recruiting and hiring at U.S. companies.  Every new hire will be the uniquely perfect candidate whose skills, personality, presence, temperament, and work habits are a flawless match for the job.  Performance management and poor performance become extinct, relics from an age in which humans brought primitive instincts, biases, and flawed intuition to hiring and employment decisions.  While there are risks and challenges to employers in introducing this technology, manufacturers of AI software say that some version of that future may not be too far off.  AI software such as Mya, HireVue, and Gecko are among the numerous platforms that employers are now leveraging to hone in on and hire the best candidates more quickly. Generally speaking, AI interviewing products combine mobile video interviews with game-based assessments. The AI platform then analyzes the candidate’s facial expressions, word choice, and gestures in conjunction with game assessment results to determine the candidate’s work style, cognitive ability, and interpersonal skills.

The California Labor Code requires employers to reimburse employees for certain expenses, but it’s not always clear which expenses should be reimbursed by the employer, and which expenses should be borne by employees.  Here’s a list of Five Things to Remember About Employee Reimbursements to help California employers navigate this area of the law.

On February 12, 2018, the Equal Employment Opportunity Commission (the “EEOC”) approved and released its Strategic Plan for Fiscal Years 2018-2022. Congress requires government agencies like the EEOC to formulate strategic plans every four years and post the plans on their website. These plans must include general goals and objectives of the agency and a description of how those goals will be achieved. In a press release introducing the plan, the EEOC indicated the plan “will serve as a framework for the Commission in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.”

All employers have personnel data on their information technology systems and devices, making cyber insurance coverage one way to protect against the cost and exposure created by data breaches. In the second of this two-part interview, Hunton & Williams partners Emily Burkhardt Vicente and Walter Andrews discuss certain types of cyber insurance policies, potential gaps in coverage to watch out for, and other tips employers should keep in mind when considering cyber insurance coverage. View the 5-minute video here

The issue of whether workers are properly classified as independent contractors rather than employees is a common dispute in the gig economy, particularly in newer, technology-based industries, such as ride-sharing.

That issue just became a much simpler one in Florida: On May 9, 2017, Florida’s governor signed into law a bill that, among other things, establishes that drivers for companies such as Lyft and Uber—called “transportation network companies” or “TNCs” under the law—are independent contractors, not employees, as long as the company satisfies four conditions:

On April 22, 2014, the Sixth Circuit reversed the district court’s dismissal of an ADA case against Ford Motor Company, finding that there was a fact issue as to whether telecommuting most days is a reasonable accommodation. In EEOC v. Ford Motor Company (No. 12-2484), the court addressed an increasingly common, yet persistently difficult, question:  when must employees be allowed to work remotely, and when is physical, in-person attendance an essential function of a job?

The growth of social media as a low-cost, widely-accessible form of communication has made it an ideal tool for businesses large and small to market themselves and reach out en mass to consumers in a manner more direct, personal, and in many ways effective than traditional media.  With Americans spending more time on-line than ever before, the value of such social media accounts can be considerable.  So when an employee who has used social media to develop his employer’s business and goodwill resigns, who owns the account, the contacts, and valuable consumer data that come with it?

The United States Department of Labor (“DOL”) has announced the launch of its first application, or “app,” for smartphones to “help employees independently track the hours they work and determine the wages they are owed” in accordance with the Fair Labor Standards Act (“FLSA”). The application is available in both English and Spanish and allows employees to privately record regular work hours, break and meal times, and any overtime hours. The free app is currently compatible only with iPhone and iPod Touch; however, the DOL is exploring updates for compatibility with other smart phones such as Android and Blackberry phones.