On November 3, 2022, an Illinois circuit court judge dismissed a Biometric Information Privacy Act (Privacy Act or BIPA) putative class action against Samsara, Inc., a DashCam developer. DashCam is a safety technology for trucking companies such as Samsara’s customer and co-defendant, Beelman Truck Co. The DashCam device points an internet-connected dashboard camera at the driver to detect risky driving behaviors.
With the rise of inflation and other negative economic indicators, most news reports are suggesting that the U.S. economy is facing uncertain times. Some economists predict that the economy is headed for a recession or that the United States has already entered one, while others are more optimistic.
Over the last decade, and arguably accelerated by the pandemic, employers have increasingly relied on new technologies to monitor, manage, and hire employees. Some of these technologies include tracking devices, keyloggers, audio recording software, and automated decision-making tools.
The White House, on October 4, 2022, unveiled its “ Blueprint for an AI Bill of Rights ,” outlining non-binding recommendations for the design, use, and deployment of artificial intelligence (AI) and automated systems when such tools are used in ways that affect individual’s rights, opportunities, or access to critical resources or services.
Some professional baseball teams are beginning to promote “Work From the Ballpark” days, encouraging fans to bring their laptops to a weekday afternoon game and work remotely from their seats. Under such promotions, fans can purchase tickets for a special section of the ballpark with access to WiFi, tables, and food so that they could stay logged on at work while enjoying the sights and sounds of the game. Employers are likely accustomed to dealing with employees who play hooky to attend an afternoon baseball game. But with the rise of remote work—and promotions such as these—should employers be concerned with employees logging into work from the ballpark?
On September 8, 2022, an Illinois federal judge dismissed with prejudice a Biometric Information Privacy Act (Privacy Act or BIPA) class action against an online eyewear retailer over its virtual try-on (VTO) tool, which consumers used to try-on eyewear.
On September 23, 2022, the New York City Department of Consumer and Worker Protection published proposed rules to implement the city’s automated employment decision tools (AEDT) law. The law, which will take effect on January 1, 2023, conditions the use of automated employment decision tools by employers and employment agencies on their compliance with certain requirements, including the performance of bias audits and the furnishing of notifications to candidates and employees. The proposed rules define several key terms, identify the requirements for a bias audit, address obligations for publishing the results of a bias audit, and specify the notices to be furnished to employees and candidates for employment.
As we previously reported, restrictions concerning the use of automated tools to screen candidates for employment or employees for promotion within New York City are scheduled to take effect on January 1, 2023. The New York City Department of Consumer and Worker Protection will hold a public hearing concerning proposed rules to implement the closely watched law on Monday, October 24, 2022.
On June 16, 2022, the government of Canada tabled a bill that would make significant changes to privacy laws impacting employers in the federal jurisdiction. The new legislation, the Digital Charter Implementation Act (Bill C-27) would replace Part 1 of the Personal Information Protection and Electronic Documents Act (PIPEDA) and would create three pieces of legislation in its place, the Consumer Privacy Protection Act (CPPA), the Personal Information and Data Protection Tribunal Act (PIDPTA), and the Artificial Intelligence and Data Act (AIDA).
California is considering new regulations on the use of technology or artificial intelligence (AI) to screen job candidates or make other employment decisions. If the regulations become law, California would be the first state to adopt substantive restrictions specifically addressing this emerging, and often misunderstood, technology.
The U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ), on May 12, 2022, issued guidance advising employers that the use of artificial intelligence (AI) and algorithmic decision-making processes to make employment decisions could result in unlawful discrimination against applicants and employees with disabilities.
On January 18, 2022, New Jersey Governor Phil Murphy signed into law Assembly Bill No. 3950. Under the law, private employers in New Jersey must provide employees with written notice before using tracking devices on vehicles operated by employees.
As the United States gradually emerges from the pandemic, employers (and especially those in the tech sector whose workforces can easily work remotely) are looking for ways to help frazzled and burned-out employees. In addition, many employees are seeking opportunities to preserve the flexibility they gained during pandemic remote-work arrangements. Time off, company holidays, and workday flexibility are among the top remedies for these concerns. But outmoded state and federal labor laws may impede a new era of worker freedom.
On January 20, 2021, President Joseph R. Biden Jr. demonstrated he will pursue a broad immigration reform agenda. The new administration has proposed comprehensive legislation to Congress that aims to create a path to citizenship for millions of undocumented immigrants living in the United States, including so-called “Dreamers” who were brought to this country as children, as well as eliminate green card quotas, reducing lengthy backlogs and improving efficiency for work visa programs. From a business immigration perspective, the proposed efficiency improvements include clearing employment-based green card backlogs and exempting STEM degree holders from green card quotas. It is important to note that this legislative proposal must first pass the U.S. House of Representatives and the U.S. Senate before being signed into law and does not address high-skilled worker visas such as H-1Bs or L-1s.
Many businesses are continuing to hire for open positions during the COVID-19 pandemic. Employers that need to continue their hiring processes may see video conferencing platforms as a valuable tool to complete job interviews while maintaining physical distancing. While affording interview participants a more personable experience than a simple telephone interview, these software services can raise unique challenges and potential legal issues that employers may want to take into consideration.
Over the years, Congress has put forth various legislative proposals regarding data privacy. None of the past legislation received the support necessary to enable passage of a comprehensive national data privacy law. In the face of the ongoing COVID-19 pandemic, however, promising new privacy legislation has been introduced by Senator Roger Wicker (R-MS), chairman of the U.S. Senate Committee on Commerce, Science, and Transportation; Senator John Thune (R-SD), chairman of the Subcommittee on Communications, Technology, Innovation, and the Internet; Senator Jerry Moran (R-KN), chairman of the Subcommittee on Consumer Protection, Product Safety, Insurance and Data Security; and Senator Marsha Blackburn (R-TN).
Since the outset of the COVID-19 pandemic, employers have been engaged in varying levels of contact tracing within the workplace. Contact tracing involves identifying individuals who may have been in close contact with a person who tested positive for the coronavirus while that person was likely infectious. As part of employers’ pandemic response practices, many are implementing policies and procedures that attempt to ascertain the identities of employees who may have been in “close contact” with employees diagnosed with COVID-19, or those suspected of having contracted the virus.
President Donald Trump signed the John S. McCain National Defense Authorization Act for Fiscal Year 2019 (NDAA) (Pub. L. No. 115-232) into law on August 13, 2018. Section 889 of the NDAA applies to schools, including hospital systems, labs, and research affiliates, receiving federal contracts, grants, and loans. Specifically, § 889(a)(1)(A), which went into effect on August 13, 2019, prohibits an executive agency from “procur[ing] or obtain[ing] or extend[ing] or renew[ing] a contract to procure or obtain any equipment, system, or service that uses covered telecommunications equipment or services as a substantial or essential component of any system, or as critical technology as a part of any system.”
As the news reports show, the sudden shift to employees working from home poses new cybersecurity risks for businesses and the employees who work remotely.