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As discussed in our blog here, President Trump’s series of executive orders aimed at eradicating “illegal” diversity, equity and inclusion policies and programs across the federal government and in the private sector did not define the term “illegal discrimination.” On March 19, the Equal Employment Opportunity Commission and the Department of Justice released guidance addressing this and outlining how DEI practices may be unlawful under Title VII of the Civil Rights Act of 1964 if they involve an employer or other covered entity taking an employment action motivated—in whole or in part—by an employee’s or applicant’s race, sex, or another protected characteristic.

Together, the EEOC and DOJ issued a joint one-page technical assistance document entitled “What To Do If You Experience Discrimination Related to DEI at Work,” providing examples of “DEI-related discrimination” under Title VII and directing employees who “suspect [they] have experienced DEI-related discrimination” to “contact the EEOC promptly.” 

The EEOC simultaneously released more detailed guidance entitled “What You Should Know About DEI-Related Discrimination at Work,” which includes eleven questions and answers addressing the process for asserting a discrimination claim and the scope of protections under Title VII as they relate to DEI practices.Continue Reading EEOC and DOJ Issue Joint Guidance on DEI-Related Discrimination

Shortly after taking office, President Trump rescinded Biden’s Executive Order on Safe, Secure, and Trustworthy Artificial Intelligence. Biden’s Executive Order sought to regulate the development, deployment, and governance of artificial intelligence within the US, identifying security, privacy and discrimination as particular areas of concern. Trump signed his own executive order titled “Removing Barriers to American Leadership in Artificial Intelligence,” directing his advisers to coordinate with the heads of federal agencies and departments, among others, to develop an “action plan” to “sustain and enhance America’s global AI dominance” within 180 days.

While we wait to see if and how the federal government intends to combat potential algorithmic discrimination and bias in artificial intelligence platforms and systems, a patchwork of state and local laws is emerging. Colorado’s AI Act will soon require developers and deployers of high-risk AI systems to protect against algorithmic discrimination. Similarly, New York City’s Local Law 144 imposes strict requirements on employers that use automated employment decision tools, and Illinois’ H.B. 3773 prohibits employers from using AI to engage in unlawful discrimination in recruitment and other employment decisions and requires employers to notify applicants and employees of the use of AI in employment decisions. While well-intentioned, these regulations come with substantial new, and sometimes vague, obligations for covered employers.

California is likely to add to the patchwork of AI regulation in 2025 in two significant ways. First, California Assemblymember Rebecca Bauer-Kahan, Chair of the Assembly Privacy and Consumer Protection Committee, plans to reintroduce a bill to protect against algorithmic discrimination by imposing extensive risk mitigation measures on covered entities. Second, the California Privacy Protection Agency’s ongoing rulemaking under the California Consumer Privacy Act will likely result in regulations restricting the use of automated decision-making technology by imposing requirements to mitigate algorithmic discrimination.Continue Reading Passage of Reintroduced California AI Bill Would Result In Onerous New Compliance Obligations For Covered Employers

Employers across the country have been relieved of the obligation to comply with the Federal Trade Commission’s rule banning most postemployment noncompetes — for now. On August 20, U.S. District Judge Ada Brown of the U.S. District Court for the Northern District of Texas granted summary judgment for plaintiffs in Ryan LLC v. FTC.…

As a consistent trend-setter in passing employee-friendly legislation, California has enacted the country’s first workplace violence prevention safety requirements applicable to nearly all employers in the state.

SB 553 requires California employers to adopt a comprehensive workplace violence prevention plan, train employees on workplace violence, and begin logging incidents by July 1, 2024.

Detailed Requirements for a Written Plan

The workplace violence prevention plan must be written, available and easily accessible to employees (as well as authorized employee representatives and Cal/OSHA representatives).Continue Reading California Employers: Prepare Your Workplace Violence Prevention Plan (Deadline In T-Minus 3 Months)

California’s regulators have made employment noncompetes (and knowing which employees are bound by them and how!) a key compliance item.

Effective January 1, 2024, AB 1076 amends Section 16600 of the state’s Business and Professions Code to “void the application of any noncompete agreement in an employment context, or any noncompete clause in an employment…

Special thanks to co-authors Thomas Asmar, Victor Flores, Denise Glagau, Christopher Guldberg, Jen Kirk, Maura Ann McBreen, Lindsay Minnis, Kela Shang, Aimee Soodan and Brian Wydajewski.

As many readers likely know, last fall California doubled-down on the state’s hostility to noncompete agreements. Assembly Bill 1076 codified the landmark 2008 Edward v. Arthur Andersen decision that invalidated all employment noncompetes, including narrowly tailored ones, unless they satisfy a statutory exception.
   
AB 1076 also added new Business & Professions Code §16600.1, requiring California employers to notify current (and certain former) employees that any noncompete agreement or clause to which they may be subject is void (unless it falls within one of the limited statutory exceptions).

Individualized written notice must be sent by February 14, 2024 or significant penalties may apply.Continue Reading Don’t Miss California’s Noncompete Notice Requirement (Deadline 2/14/24) |Review Equity Award Agreements & Other Employment-Related Contracts ASAP

Does your holiday wish list include CLE credit and a quick tutorial on what to expect in California labor and employment law next year?

Excellent!

Join us for our virtual California 2023-2024 Employment Law Update on Wednesday, December 13 @ 1PM PT.

2023 has been a year of dramatic change for California employers, but have…

In Raines v. U.S. Healthworks Medical Group, the California Supreme Court expanded the definition of an “employer” under the state’s discrimination statute to include certain third-party business entities that perform employment-related functions on behalf of employers. These agents may now be deemed “employers” such that they can be directly liable for employment discrimination under the Fair Employment and Housing Act for certain activities that they carry out on behalf of employers.

Overview of Raines

The Raines‘ plaintiffs were job applicants who received offers of employment that were conditioned on the successful completion of pre-employment medical screenings conducted by a third-party company that used automated decision-making. Plaintiffs alleged that the screening form contained intrusive questions regarding their medical history that violated FEHA. They brought claims against their employers, as well as the third-party provider that conducted the medical screening. The question for the Court was whether business entities acting as agents of an employer, can be considered “employers” under FEHA and held directly liable for FEHA violations caused by their actions.

The Court examined the plain language in FEHA’s definition of “employer” and concluded that the definition did indeed encompass third-party corporate agents like the medical provider in his case. FEHA defines an employer as “any person regularly employing five or more persons, or any person acting as an agent of an employer, directly or indirectly.” Here, the Court reasoned, recognizing the medical provider as an agent of the employer extended liability to the company most directly responsible for the FEHA violation.Continue Reading Automated Decision-Making and AI: California Expands FEHA Liability to Include Third-Party Business Agents of Employers

As volatility and uncertainty in the global economy continues, many multinationals are taking (or considering) major changes to their workforce composition. Labor costs are typically the largest cost center for any company, so of course businesses need to understand how best to flex up and down as markets change. At the same time, a company’s…

Together we navigated operational challenges caused by the pandemic, and together we will weather this. What follows is information and practical advice for employers concerned with satisfying their payroll obligations in the near term in the face of their bank falling into receivership.

  • Identify the “universe” of employment-related expenses. This will include payroll, benefits, bonus and commission comp, insurance, and severance obligations.
  • Understand that liability for unpaid wages can be significant. For example, liability in California includes:
    • Back payment of any unpaid wage amounts that employees prove they were legally entitled to.
    • Interest of up to 10% of the unpaid wages.
    • Penalties for late payment of wages equal to: (i) $100 for the first violation; and (ii) for each subsequent violation, $200 plus 25% of the amount unlawfully withheld. Penalties may apply for each pay period that wages remain unpaid.
    • If any employees leave the company after the payday date, the company can be liable for waiting time penalties for late payment of final wages. Waiting time penalties are equal to 1 day’s wages for each day an employee’s final wages are unpaid, up to a maximum penalty of 30 days’ wages.
    • Companies may be required to pay employees’ attorney’s fees if the employees prevail in litigation.
    • Criminal liability for wage theft if the act is “intentional.” Felony cases are punishable by up to 3 years in prison.  

Continue Reading Navigating Fallout From a Bank Receivership | Practical Tips for US Employers