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The month of July will bring forth two notable changes to immigration compliance requirements: (i) Florida will require that all private employers with at least 25 employees use E-Verify as of July 1; and (ii) the United States Citizenship and Immigration Services (“USCIS”) will end temporary flexibilities on July 31 that permitted certain employers to complete the Form I-9 remotely without inspection of the original documents. Employers–throughout the United States–must be aware of how mandatory E-Verify will or could impact their company and how the end of remote I-9 completion will impact its remote workforce.

Mandatory E-Verify in Florida

Governor Ron DeSantis signed SB 1718 into law on May 10, with an effective date of July 1, 2023. The law expands mandatory use of E-Verify to all private employers with 25 or more employees. SB 1718  expands existing State law which requires the use of E-Verify by public employers, private employers which contract with public employers, and private employers which receive state incentives.  The new law aligns Florida with other states with mandatory E-Verify requirements, including Utah, Arizona, Tennessee, Mississippi, Alabama, South Carolina, and North Carolina.

What is E-Verify?

E-Verify is an internet-based system that compares information entered by an employer from an employee’s Form I-9, Employment Eligibility Verification, against records available to the US Department of Homeland Security and the Social Security Administration to confirm employment eligibility. The program is additive to and does not replace the I-9 requirement. E-Verify is a meaningful tool that helps employers verify the work authorization of their workforce; it can also serve as evidence of good faith during government investigations relating to I-9 practices. However, employers must meet compliance requirements when using E-Verify, and noncompliance can result in fines and other civil penalties.

Requirements for private employers

The Florida law will require that all private employers with 25 or more employees register for E-Verify and utilize it for new employees hired on or after July 1, 2023. Each employer subject to the new law will be required to retain copies of the E-Verify documentation for at least three years, and will be required to verify compliance on its first return when making contributions to or reimbursing the state’s unemployment compensation or reemployment assistance program. Notably, employers who use E-Verify–whether required or not–will create a rebuttable presumption that they have not knowingly employed an unauthorized worker.

Continue Reading Mandatory E-Verify in Florida and the End of I-9 Flexibility for Remote Workers: Major Changes to Immigration Compliance Landscape on the Horizon
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Just after the fireworks’ finale, New York City’s Department of Consumer and Worker Protection will begin enforcing its new ordinance regulating the use of automation and artificial intelligence in employment decisions. The DCWP recently issued a Notice of Adoption of Final Rule establishing that enforcement efforts will begin July 5, 2023.

Here are three reasons this matters

  1. The new law requires time-sensitive, significant actions (read: audits, notices and public reporting) from employers using automated employment decisions tools to avoid civil penalties;
  2. Company compliance will require a cross-functional response immediately, so it’s time to get your ducks in a row; and
  3. Since the City’s law is (mostly) first-of-its-kind, it is likely a harbinger of things to come for employers across the country and it could be used as a framework in other cities and states.

The law in a nutshell

Local Law 144 prohibits employers and employment agencies from using an automated employment decision tool unless the tool has been subject to a bias audit within one year of the use of the tool, information about the bias audit is publicly available, and certain notices have been provided to employees or job candidates. Violations of the provisions of the law are subject to a civil penalty.

Continue Reading Enforcement of New York City’s Artificial Intelligence Rule Begins July 5, 2023: Here’s What Employers Need to Know
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With special thanks to author Aimee Rosien.

Given recent developments and trends in the United States relating to restricted covenants (especially non-competes), companies should take another look at any restrictive covenants included in equity award agreements.

In the past, companies rarely tailored restrictive covenants in equity award agreements to each jurisdiction (US states or countries outside the United States). Now, with so many new restrictions in the United States, it is more typical for companies to tailor the restrictive covenants for compliance with applicable US state law.

However, outside the United States, enforcing restrictive covenants in an award agreement is even more problematic, especially non-compete and non-solicitation covenants. To learn more about the possible approaches companies can take to deal with restrictive covenants for employees outside the United States, read our recent NASPP guest blog post.

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The Equal Opportunity Employment Commission (EEOC) has released new guidance for employers on the use of artificial intelligence (AI) in employment, this time with a focus on adverse impact under Title VII. On May 18, 2023, the EEOC released “Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964” (the “guidance”), expanding its Artificial Intelligence and Algorithmic Fairness Initiative and adding to its May 2022 guidance on disability discrimination in connection with the use of AI tools in employment.

The new (limited) guidance

The guidance’s scope is limited to the assessment of whether an employer’s “selection procedures”—the procedures it uses to make employment decisions such as hiring, promotion, and firing—have an adverse impact under Title VII. In the guidance, the EEOC acknowledges that while many employers routinely monitor more traditional decision-making procedures for adverse impact, employers may have questions about whether and how to monitor the newer algorithmic decision-making tools–which Q&As in the guidance address.

The guidance:

  • Alerts employers to examples of software used in the employment process that may utilize the type of “algorithmic decision-making” employers may not yet routinely monitor, including resume scanners that prioritize applications using certain keywords; employee monitoring software that rates employees on the basis of their keystrokes or other factors; and “virtual assistants” or “chatbots” that ask job candidates about their qualifications and reject those who do not meet pre-defined requirements.
  • Highlights issues typically involved in Title VII disparate impact cases arising from seemingly-neutral tests or selection procedures.
  • Provides information (via Q&As) to help employers determine whether and how to monitor newer algorithmic decision-making tools, including the following concerns, among others:
    • Whether employers can assess their use of an algorithmic decision-making tool for adverse impact in the same way that they assess more traditional selection procedures for adverse impact (the EEOC says yes, but provides only a simple example that does not address all of the potential complexities that may be at play when sophisticated artificial intelligence tools are utilized);
    • Whether an employer is responsible under Title VII for its use of algorithmic decision-making tools even if the tools are designed or administered by another entity, such as a software vendor (the EEOC says in many cases, yes); and
    • Whether an employer can adjust an algorithmic decision-making tool or use a different selection device if it discovers in the process of developing the tool that its use would have an adverse impact (the EEOC says yes, and suggests in some cases the employer may be required to take such steps).

Employer takeaways

  • While the EEOC guidance is not binding, the EEOC encourages employers to conduct self-analyses on an ongoing basis to determine whether their employment practices have an adverse impact under Title VII.
  • Employers should also consult with their employment counsel to proactively address any questions or concerns regarding the use of algorithmic decision-making tools used in employment decisions, and to ensure that these technologies are used fairly and consistently with federal equal employment opportunity laws.
  • And considering the EEOC’s recent joint statement with the Department of Justice, Federal Trade Commission, and Consumer Financial Protection Bureau on enforcement efforts against discrimination and bias in automated systems, employers should keep a look out for possible forthcoming guidance from the EEOC and other federal agencies.
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Proud to share that our colleague Jennifer Bernardo was recently spotlighted in Precedent Magazine. Jen is a stellar advocate for her clients and, in this profile, she shares how her office is an extension of her life, filled with items that help her thrive in her litigation practice.

The article is accessible here.

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With special thanks to our presenters Matías Herrero (Argentina), Leticia Ribeiro (Trench Rossi Watanabe, Sao Paulo*), Andrew Shaw (Canada), Maria Cecilia Reyes (Colombia) and Liliana Hernandez-Salgado (Mexico).

In this session, US-based multinational employers with business operations in the Americas region hear directly from Benjamin Ho and local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

Please click here to view a recording of the webinar highlighting the Americas.

Click here to view the program details and to watch recordings of any sessions you may have missed.

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Special thanks to co-presenters Elizabeth Ebersole, Barbara Klementz, Dionna Shear, Amanda Cohen, Benjamin Ho, Jennifer Bernardo, Kaitlin Thompson, Marredia Crawford (Director, ID&E, Americas), Goli Rahimi, Paul Evans, Monica Kurnatowska and Blair Robinson.

Our team is busy advising multinational companies on employment law issues surrounding workplace inclusion, diversity and equity programs. This is an area to watch as the legal landscape related to ID&E programs is shifting.

While there’s pressure from employees and shareholders to increase and improve corporate diversity and inclusion (not to mention the potential for better financial outcomes), there is also a growing trend of state and local legislation restricting workplace ID&E efforts, increasing claims of reverse discrimination and attacks on laws mandating diversity on corporate boards. And, outside the US, there are new regulations requiring pay transparency and reporting, and new reasons to consider undertaking equal value and pay equity audits with counsel.

Listen in to our 5-part series of quick chats to get the lay of the land: ID&E IMPACT Video Miniseries Roundup

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This summer the US Supreme Court will rule on the legality of using race as an affirmative action measure in admissions at Harvard and at the University of North Carolina. The legal framework for evaluating affirmative action programs in higher education is definitively different than for inclusion, diversity and equity (ID&E) programs in the employment context. Notwithstanding this distinction, the decision will signal how courts review workplace ID&E practices and policies, and may encourage legal challenges regarding the same.

The timing of this case coincides with a growing trend of state and local legislation seeking to restrict workplace ID&E efforts, increasing claims of reverse discrimination, continued shareholder action in the ID&E space, including some actions challenging the devotion of resources to ID&E as not in the interest of shareholders, and attacks on laws mandating diversity on corporate boards.

Case Background

In 2014, Students for Fair Admissions (a nonprofit group of “students, parents and others who believe that racial classifications and preferences in college admissions are unfair, unnecessary, and unconstitutional”) sued both Harvard and UNC in federal court alleging that race-conscious admissions programs are unlawful. Both universities won at the trial court level. Now, SFFA has asked the Supreme Court to overrule its prior decisions and hold that the consideration of race as part of a holistic college admissions process in order to achieve a diverse student body violates Title VI of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment to the US Constitution.

Continue Reading How the Supreme Court’s Upcoming Affirmative Action Decision May Impact US Employers
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With special thanks to presenters Elif Nur Çakır Vurgun (Türkiye), Johan Botes (South Africa), Joanna Matthews-Taylor (United Arab Emirates), Christiana O’Connell-Schizas (Saudi Arabia) and Ghada El Ehwany (Egypt).

In this session, US-based multinational employers with business operations in the Middle East and Africa region hear directly from Elizabeth Ebersole and local practitioners on the major developments they need to know, and come away with practical tips and takeaways to implement.

Please click here to view a recording of the webinar highlighting MEA.

Click here to view the program details and to watch recordings of any sessions you may have missed.

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Special thanks to co-authors Eunkyung Kim Shin and Alexandre Lamy.

Last month, the U.S. Department of Justice issued a new fact sheet reminding employers of how to simultaneously comply with export control regulations and avoid running afoul of anti-discrimination provisions contained in the Immigration and Nationality Act. The new fact sheet aligns with recent DOJ enforcement actions against a range of companies in relation to overly restrictive job postings, hiring processes and employment eligibility verification processes.

Employers, particularly within human resources, recruitment and trade compliance, must be aware of how to walk this tightrope to ensure that good faith compliance efforts do not unintentionally create a compliance risk.

The DOJ Fact Sheet and Enforcement Trend

The DOJ fact sheet provides specific guidance to help employers navigate export control regulations without committing discrimination as it relates to recruiting and hiring.

As further discussed in this article, the DOJ fact sheet encourages employers to (1) limit export control language in job advertisements to avoid unintentional discrimination; (2) separate export compliance assessments from the I-9 process; (3) ensure I-9 documentation is stored separately from export compliance documentation; and (4) ensure they provide training for employees involved in export compliance and employment verification processes

Click here to continue reach this article.

Original article published in Law360.