Beltway Buzz, June 2, 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.
Blog
NLRB General Counsel Says Noncompete Agreements Violate Federal Labor Law
The National Labor Relations Board General Counsel (GC) issued a memorandum on May 30, 2023, declaring her opinion that the “proffer, maintenance, and enforcement’ of noncompete agreements in employment contracts and severance agreements violate the National Labor Relations Act (NLRA) “except in limited circumstances.”
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.
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.
Beltway Buzz, May 5, 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.
NLRB Ruling Makes It More Difficult for Employers to Discipline Employees Over Outbursts
On May 1, 2023, the National Labor Relations Board (NLRB) issued a decision in Lion Elastomers LLC II that changes the standards relating to discipline or discharge of workers who cross the line with offensive or abusive conduct while engaging in activity protected by the National Labor Relations Act (NLRA).
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?
August 2022 Updates to Pennsylvania’s Overtime Rules for Salaried Nonexempt Employees
On August 5, 2022, new Pennsylvania state wage-and-hour regulations for tipped and salaried nonexempt workers under the Pennsylvania Minimum Wage Act (PMWA) go into effect.
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.
An Update on Coronavirus Contact Tracing: Status, Benefits, and Key Considerations
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.
Pennsylvania Governor Issues Statewide Order Closing All Businesses That Are Not Life Sustaining
On March 19, 2020, Governor Tom Wolf issued a broad executive order requiring the closure of “all businesses that are not life sustaining.” Simultaneously, the secretary of Pennsylvania’s Department of Health issued a similar order, explaining “the closure of non-life sustaining businesses is necessary to protect the public’s health.”
Love at Work: 5 Things for Employers to Know
Workplace romances are inevitable. According to a recent survey by the Society for Human Resource Management, one out of every three American adults is or has previously been in a workplace romance. Given this reality, coupled with the #MeToo movement and the resulting renewed emphasis on preventing workplace sexual harassment, it is important to have a basic understanding of the key practical and legal issues surrounding workplace relationships.
Pittsburgh’s Paid Sick Days Act Is Now on Course to Take Effect
After a lengthy journey through the Pennsylvania legal system, the City of Pittsburgh’s Paid Sick Days Act is now on course to go into effect. The Act was signed by the Pittsburgh mayor in 2015, but its implementation was delayed due to legal challenges.
Advanced Technologies and the Workplace, Part I: A Primer
You have probably heard the phrases “fourth industrial revolution” and the “future of work.” Both refer to changes in the way people live, work, and relate to one another due to rapid developments in technology. Here are five things you should know about advanced technologies and the workplace.
Keeping an Eye on Artificial Intelligence Regulation and Legislation
More and more organizations are beginning to use or expand their use of artificial intelligence (AI) tools and services in the workplace. Despite AI’s proven potential for enhancing efficiency and decision-making, it has raised a host of issues in the workplace which, in turn, have prompted an array of federal and state regulatory efforts that are likely to increase in the near future.
Blockchain and HR: What You Need to Know
You have probably heard the term “blockchain,” most likely in the context of Bitcoin. You have also probably seen splashy headlines suggesting that blockchain is the next game-changing technology that will upend the business world. This article will demystify blockchain technology and identify some of its potential applications for human resources (HR).
Transformational Artificial Intelligence: Prioritizing AI in Healthcare While Maintaining Legal Compliance
In February 2019, President Trump signed an executive order titled “Maintaining American Leadership in Artificial Intelligence,” also known as the American AI Initiative, that aims to increase the use of artificial intelligence (AI) nationwide.
Major Changes Proposed to Pennsylvania’s Overtime Rules
Employers with operations in Pennsylvania may want to take note of significant changes in the pipeline to the state’s wage and hour rules.
Frustrated, Angry, or Discouraged? Tips for How to Treat Former Employees’ “Vent Letters”
Sometimes departing employees are more comfortable expressing their concerns in writing rather than communicating them verbally. These written messages may take the form of what’s often called a “vent letter,” which could range from an informal email to something that looks more like a formal complaint. Employers and human resources (HR) professionals are tasked with appropriately addressing such communications. Here are some tips and answers to commonly asked questions about vent letters.
Pennsylvania and DOL Collaborate in Employee Misclassification Enforcement Efforts
The Pennsylvania Department of Labor and Industry recently signed a three-year memorandum of understanding (MOU) with the U.S. Department of Labor’s (DOL) Wage and Hour Division designed to prevent employees from being misclassified as independent contractors and other wage-and-hour violations.
Oil Field Employers Post-McMaster: Still Searching for Clarity on the TCA’s Impact on the Motor Carrier Act Exemption
In McMaster v. Eastern Armored Services, Inc., No. 14-1010 (March 11, 2015), the Third Circuit Court of Appeals issued one of the first federal appellate court opinions discussing the SAFETEA-LU Technical Corrections Act of 2008 (TCA). The TCA is an uncodified amendment to the Fair Labor Standards Act of 1938 (FLSA) that, according to the Third Circuit, creates a “carveout” from the Motor Carrier Act Exemption (MCAE). Under the MCAE, professional motor carriers are generally exempt from the overtime requirements of the FLSA. The Third Circuit explained that the TCA “waives the exemption for motor carrier employees who, in whole or in part, drive vehicles weighing less than 10,000 pounds.”