Beltway Buzz, May 13, 2022

EEOC, DOJ Issue Guidance on AI in the Workplace. On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) each issued guidance documents addressing potential disability discrimination that might result from employers’ use of artificial intelligence (AI) tools or other computer software when making employment decisions. The EEOC’s guidance, titled, “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees,” focuses on three primary concerns regarding AI tools and the potential applicability of the Americans with Disabilities Act (ADA):

• The guidance notes that under the ADA, employers using AI to assess job applicants and/or employees may be required to provide reasonable accommodations. According to the guidance, examples of reasonable accommodations include extended time to perform a task or an alternative test.
• The guidance warns of AI tools that may unlawfully “screen out” individuals from job opportunities. For example, an AI tool might automatically reject an applicant with a gap in his or her employment history, even though the gap was caused by a disability that required the individual to stop working in order to undergo medical treatment.
• Further, the guidance notes that in some instances, AI assessment tools might violate the ADA’s restrictions on disability-related inquiries and medical examinations.

Of important practical consideration for employers, the guidance offers tips and best practices for determining whether AI tools potentially discriminate against individuals with disabilities.

Jennifer Betts, Danielle Ochs, and Zachary Zagger have the details.

EEOC Nomination Hearing. On May 10, 2022, the U.S. Senate Committee on Health, Education, Labor and Pensions held a hearing on Kalpana Kotagal’s nomination to be a member of the EEOC. With Commissioner Janet Dhillon’s term set to expire on July 1, 2022, President Biden is moving quickly to ensure that Democrats gain a majority on the Commission as soon as possible. If confirmed, Kotagal will join fellow Democrats, chair Charlotte Burrows and vice chair Jocelyn Samuels, as well as Republican commissioners Keith Sonderling and Andrea Lucas. That potential Democratic majority could lead to an eventual break in the current regulatory logjam at the Commission. The general counsel’s position remains vacant following the expiration of the term of Acting EEOC General Counsel Gwendolyn Young Reams in December 2021.

House Dems Push Wage and Hour Bill. On Wednesday, May 11, 2022, the U.S. House Committee on Education and Labor’s Workforce Protections Subcommittee held a hearing titled “Standing Up for Workers: Preventing Wage Theft and Recovering Stolen Wages.” The hearing focused on Democrats’ promotion of the Wage Theft Prevention and Wage Recovery Act (H.R. 7701, S. 4174), which was recently introduced in both the U.S. House of Representatives and U.S. Senate. The bill would, among things, implement prescribed federal paystub disclosures, make it easier for plaintiffs’ attorneys to bring class actions by removing the Fair Labor Standards Act’s (FLSA) “opt-in” requirement, increase civil penalties, increase liquidated damages to two or three times the amount of unpaid wages, and ban arbitration of wage and hour disputes. Of course, when the stakes of wage and hour disputes are raised dramatically—as this bill, if enacted, would do—drawn-out litigation is a likely result.

Senator Sanders Urges Federal Contractor “Blacklisting.” As a follow-up to his recent push for a federal contractor blacklisting scheme, Senator Bernie Sanders (I-VT), who chairs the U.S. Senate Committee on the Budget, held a hearing last week titled “Should Taxpayer Dollars Go to Companies that Violate Labor Laws?” During his opening remarks, Senator Sanders asked President Biden to fulfill promises he made on the campaign trail to “institute a multi-year federal debarment for all employers who illegally oppose unions” and to “ensure federal contracts only go to employers who sign neutrality agreements committing not to run anti-union campaigns.” As for the business community’s response, U.S. Chamber of Commerce official Glenn Spencer stated in his written testimony that “[p]reventing a company from participating in federal contracting would limit the ability of the federal government to seek out the most efficient and effective provider of a particular service.”

Business Groups to DOL: Pending OT Reg. Changes Threaten Economy. According to the Fall 2021 Unified Agenda of Regulatory and Deregulatory Actions, the U.S. Department of Labor (DOL) was scheduled to issue a proposed rule amending the regulations implementing the FLSA’s white-collar exemptions in April 2022. As part of its efforts opposing such a rulemaking, the Partnership to Protect Workplace Opportunity (PPWO) and ninety-three business groups sent a letter this week to Secretary of Labor Marty Walsh, urging the DOL to “abandon or at least postpone issuance of its announced proposed rulemaking altering the overtime regulations under the Fair Labor Standards Act.” The PPWO further stated that “[d]ue to significant concerns with supply chain disruptions, workforce shortages, inflationary pressures, and the shifting dynamics of the American workforce following the COVID-19 pandemic, any rule change now would be ill-advised.” Potential changes to the overtime regulations are likely to be the subject of significant policy debate in the second half of President Biden’s term.

Thanks, Mom. This past Mother’s Day (May 8, 2022) marked the 118th anniversary of the national holiday honoring mothers. The holiday’s roots run back to the late 1860s and 1870s, when local mothers would gather to honor sons fallen in war or advocate for issues such as temperance or world peace. But credit for the establishment of the modern holiday most often goes to Anna Jarvis, who sought to set aside a day to commemorate her mother Ann (who took part in those early Civil War-era mothers’ gatherings). Jarvis’s first public celebration of her mother occurred on May 12, 1907, in Grafton, West Virginia, and the event was soon replicated in Philadelphia and New York City. On May 8, 1914, President Wilson signed a law designating the second Sunday in May as Mother’s Day. (Although it is a national holiday or observance, Mother’s Day is not one of the eleven federally established public holidays.) Despite this success, Jarvis eventually became frustrated with what she thought was the overcommercialization of Mother’s Day and started a petition in 1943 to rescind the holiday. Soon thereafter, however, Jarvis was placed in a sanitarium, where she resided until her death in 1948.