The New York City Department of Consumer and Worker Protection (DCWP) announced that it will not start enforcing the law regulating automated employment decision tools until at least April 15, 2023. Local Law 144 of 2021 was scheduled to take effect January 1, but the DCWP attributed the delayed enforcement of the law to the high volume of public comments it received addressing its proposed regulations to implement the law. This law is the very first law within the United States squarely and comprehensively addressing the use of AI in making employment decisions. The law requires that before an employer uses an “automated employment decision tool” (AEDT, which is basically AI) that it conduct a bias audit within a year of using the tool, and that certain notices be given to candidates who may be subject to the AEDT, with an option to opt out of the AEDT process.
On October 31, 2022, the General Counsel for the National Labor Relations Board (NLRB), Jennifer Abruzzo, issued a memorandum instructing regional offices to closely scrutinize employer use of certain electronic monitoring, data collection and automated management technologies. This memorandum further evidences the NLRB’s commitment to effectuating a strong national labor policy which includes protecting employees’ organizational rights and encouraging collective bargaining as described in our November 2020 client alert. Abruzzo reiterated these policy objectives in her February 2022 memorandum issued in support of the Biden administration’s Task Force on Worker Organizing and Empowerment’s February 2022 labor report.
Employers face new challenges in navigating state and local pay equity laws. New York City joins a number of other jurisdictions that now require employers to disclose pay ranges when advertising job postings – including for incumbents as well as new hires. This law is set to take effect on May 15, 2022 (unless delayed by pending legislation discussed below). The New York City Commission on Human Rights (the “NYCCHR”) recently published a fact sheet providing guidance with regard to Local Law 32 of 2022 (the “NYC Law”). The NYC Law requires all covered employers to include a minimum and a maximum salary in any advertisement for a job, promotion, or transfer opportunity.
On March 30, 2022, a panel in the Third Circuit Court of Appeals overruled nearly 30-year-old precedent and held that arbitration provisions do not survive the expiration of a collective bargaining agreement (CBA) in Pittsburgh Mailers Union Local 22 v. PG Publishing Co. The previous rule, first articulated in Luden’s Inc. v. Local No. 6 Union of the Bakery, Confectionary & Tobacco Workers International Union, 28 F.3d 347 (3d Cir. 1994), was premised on the idea that where an employer and a union agree to maintain certain terms and conditions of employment after the expiration of a CBA, a “new implied-in-fact-CBA” is formed that implicitly incorporates the expired CBA’s dispute resolution mechanisms. The only exceptions were situations where both parties intended the arbitration clause to expire with the contract or where one party, under the totality of the circumstances “objectively manifest[ed] to the other a particularized intent . . . to disavow or repudiate that term.” These exceptions were exceedingly narrow.
On March 3, 2022, President Joe Biden signed the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the Act) into law. Upon signing the bill, which had bipartisan Congressional support, President Biden proclaimed, “[w]hen it comes to sexual harassment and assault, forced arbitration shielded perpetrators, silenced survivors, enabled employers to sweep episodes of sexual assault harassment under the rug and it kept survivors from knowing if others have experienced the same thing in the same workplace, at the hands of the same person.”
As more organizations use artificial intelligence and algorithms to drive decision-making processes, policymakers are beginning to address concerns about these tools — including their lack of transparency and potential for generating unintended bias and discrimination. In our inaugural artificial intelligence briefing, we provide a rundown of recent AI regulatory and legislative developments from across the U.S. that should be top of mind for any organization using AI or algorithms.