Beltway Buzz, May 26, 2023
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C., could impact your business.
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EEOC Issues New Guidance on Employer Use of AI and Disparate Impact Potential
On May 18, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued the latest federal guidance on employer use of artificial intelligence (AI) and automated decision-making tools. The new guidance reinforces the EEOC’s ongoing focus on the use of AI in the workplace and serves as an important reminder to employers of potential legal compliance issues associated with the use of such tools.
EEOC Issues Joint Statement on Automated Systems and AI Concerns With Other Agencies
On April 25, 2023, the U.S. Equal Employment Opportunity Commission (EEOC), Department of Justice (DOJ) Civil Rights Division, Consumer Financial Protection Bureau (CFPB), and the Federal Trade Commission (FTC) issued a joint statement pledging to enforce federal laws to “promote responsible innovation” in the context of automated decision-making and artificial intelligence (AI) systems that are increasingly being used by public and private organizations, including to make employment-related decisions.
New NLRB General Counsel Memorandum Continues Trend of Increasing Oversight of Employer Technology Use
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.
White House Unveils Blueprint to Guide Use of AI, Automated Systems Technology
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.
‘Work From the Ballpark’—Is the Latest Remote Work Promotion a Foul Ball?
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?
Recognizing Juneteenth and Strengthening Commitment to Diversity
June 2022 marks one year since President Joe Biden signed the Juneteenth National Independence Day Act on June 17, 2021, designating Juneteenth as the 11th federally recognized public holiday in the United States.
Beltway Buzz, May 13, 2022
The Beltway Buzz is a weekly update summarizing labor and employment news from inside the Beltway and clarifying how what’s happening in Washington, D.C. could impact your business.
California’s Draft Regulations Spotlight Artificial Intelligence Tools’ Potential to Lead to Discrimination Claims
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.
EEOC, DOJ Warn Artificial Intelligence in Employment Decisions Might Violate ADA
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.
President Biden Signs Juneteenth Bill Into Law, Making June 19 a Federal Holiday
On June 17, 2021, President Joe Biden signed the Juneteenth National Independence Day Act, making June 19 a legal public holiday. Juneteenth is the day that commemorates the emancipation of enslaved African Americans in the United States. June 19, 2021 will be the 156th anniversary of Juneteenth.
AB 51 Enjoined at the Last Minute: Court Issues TRO on California’s Arbitration Statute
As discussed in our prior article, California recently enacted Assembly Bill (AB) 51, a law that attempts to ban certain mandatory employment arbitration agreements in the state.
False Alarm? The Practical Impact of AB 51, California’s New Anti-Arbitration Statute
On October 10, 2019, California Governor Gavin Newsom signed into law a state statute purporting to prohibit employers from requiring employees to enter into certain types of arbitration agreements. This new law is creating significant uncertainty and anxiety among employers. What is the practical impact of AB 51 in light of its possible preemption by the Federal Arbitration Act (FAA) and other potential challenges to its limits on arbitration?
Answers to 10 Questions About California’s Ban on Mandatory Arbitration of Statutory Employment Claims
California is set to become the only state to outlaw predispute mandatory arbitration of statutory employment claims. On October 10, 2019, Governor Gavin Newsom signed California Assembly Bill (AB) 51, which prohibits employers from requiring employees to arbitrate claims arising under the California Fair Employment and Housing Act (FEHA) and related employment statutes.
The Latest on California’s Approach to Biometrics in the Workplace
Although California does not have a specific biometric privacy law like Illinois’s 2008 Biometric Information Privacy Act (BIPA) or its recently enacted 2019 Artificial Intelligence Video Interview Act (AIVIA), stay tuned for the impact of the California Consumer Privacy Act (CCPA), which goes into effect on January 1, 2020. The CCPA will directly affect how certain employers use biometric data in the workplace.
California Promotes AI in Hiring and Employment
Legislatures across the country are racing to keep up with the ever-expanding uses of artificial intelligence (AI) in the workplace. While to date much of the focus has been on ethical uses of AI, disclosures requirements, and informed consent (e.g., the Illinois 2019 Artificial Intelligence Video Interview Act), the California legislature recently took the bold move of promoting AI as a tool to reduce bias and discrimination in hiring and employment.
Protecting Confidential Information and Trade Secrets When Employees Leave the Company
When employees leave a company—whether it is due to a voluntary or involuntary separation—their former employers may worry about the security of the company’s confidential information and trade secrets.
California Court Declines to Issue DTSA Seizure Order
On January 6, 2016, the U.S. District Court for the Northern District of California issued one of its first decisions interpreting the ex parte seizure provisions found in the recently enacted Defend Trade Secrets Act of 2016 (DTSA).
Labor Code Section 925: Answers to 10 Key Questions About California’s New Limits on Out-of-State Choice of Law and Forum Selection Clauses
On January 1, 2017, California Labor Code Section 925 went into effect. This new provision limits an employer’s ability to require employees to enter agreements that include out-of-state choice of law and/or forum selection clauses.
Five Questions You Should Ask About the Defend Trade Secrets Act
Until recently, the Economic Espionage Act of 1996 (EEA) allowed for federal trade secret actions by the U.S. Department of Justice. The Defend Trade Secrets Act of 2016 (DTSA) amended the EEA to provide private litigants the right to sue (and be sued) in federal court for trade secret misappropriation. The DTSA establishes a three-year statute of limitation and provides several remedies for successful plaintiffs, including injunctive relief, compensatory damages, and attorneys’ fees.
The Defend Trade Secrets Act Is Now Law
On May 11, 2016, President Barack Obama signed into law the long-awaited Defend Trade Secrets Act of 2016 (DTSA), which is effective immediately. Three key features of the DTSA include: (1) the creation of a federal private right of action for trade secret misappropriation; (2) a provision permitting ex parte civil seizure of property necessary to prevent the propagation or dissemination of trade secrets; and (3) a requirement that employers provide notice to employees of their immunities under the DTSA for making confidential disclosures to the government, in court filings, or in connection with whistleblower retaliation claims by employees against their employers.
Defend Trade Secrets Act of 2016 Heading to White House: What You Should Know Now
Congress has finally passed the anticipated Defend Trade Secrets Act of 2016 (DTSA). The bill, which is now on its way to the White House and is expected to be signed by President Obama, will be effective immediately once it is signed into law.
California FEHA Forecast: Evidence of Pretext Required in Anti-SLAPP Case Against TV Stations
On January 19, 2016, a California Court of Appeal issued an unpublished decision in Hunter v. CBS Broadcasting, Inc. The case was brought by Kyle Hunter, who filed an employment discrimination complaint, claiming that two local CBS television stations, KCAL and KCBS, had “repeatedly shunned [him] for numerous on-air broadcasting positions . . . due to . . . his gender and his age.” He asserted that CBS’s failure to hire him was part of “[a] plan to turn prime time weather broadcasting over to younger attractive females” in violation of the California Fair Employment and Housing Act (FEHA).
Sorting Laundry: California Court Reaffirms Scope of Uniform Trade Secrets Act
A California Court of Appeal recently held that claims of breach of contract, breach of fiduciary duty, and unfair competition are not “displaced” or preempted by California’s Uniform Trade Secrets Act (CUTSA).