Employers increasingly rely on computer-based tools to assist them in hiring workers, monitoring worker performance, determining pay or promotions, and establishing terms and conditions of employment. Automatic resume-screening software, hiring software, chatbot software, video interviewing software, analytics software, and employee monitoring and worker management software allow employers to find efficiencies in day-to-day employee management. Software may scan resumes and prioritize the use of certain keywords, rate employees based on their keystrokes, facial expressions or speech patterns, and obtain information about qualifications and cognitive abilities before a hiring manager ever takes a second look.
On May 12, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) and the U.S. Department of Justice (DOJ) issued separate guidance addressing employers’ use of algorithms and artificial intelligence (AI) in employment-related decision-making. Both technical assistance documents focus specifically on how employers’ use of these technologies may adversely impact individuals with disabilities and violate the Americans with Disabilities Act (ADA).
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As non-competition laws and the scrutiny of non-compete agreements continue to be in the spotlight, several states are revisiting their non-compete laws. Colorado has been in the spotlight after the Colorado Legislature passed S.B. 21-271 on July 6, 2021 in an effort to reform the sentencing provisions related to numerous petty offenses and misdemeanors. As a result, several Colorado laws related to labor and employment are affected, including Colorado’s statute addressing restrictive covenant agreements, C.R.S. § 8-2-113.
Under C.R.S. § 8-2-113, it is unlawful to: intimidate workers in order to limit their ability to engage in lawful work; and enter into covenants that restrict trade, such as non-compete and non-solicitation agreements, unless the covenants fit within limited exceptions provided under the statute. The penalty if convicted for violating the non-compete statute is currently a misdemeanor punishable by a fine between $10–$250, or jail time of not more than 60 days, or both. C.R.S. § 8-2-115. Effective March 1, 2022, the penalty for violating the non-compete statute will be increased to a class 2 misdemeanor punishable by up to 120 days in jail, or a fine of up to $750, or both, as a result of the changes from S.B. 21-271. S.B. 21-271 also amends the text of C.R.S. § 8-2-113 to include the increased penalty as a new subsection (4).
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As COVID-19 vaccine mandates by employers become more common, so do requests for exemptions. Requests for religious exemptions from COVID-19 vaccine mandates have forced many employers to make difficult decisions regarding the validity of the accommodation requests as well as whether and how to reasonably accommodate legitimate requests — while also meeting the obligation to maintain a safe and healthy workplace. Yesterday, the EEOC issued new guidance providing helpful insight regarding an employer’s obligation to grant requests for religious exemptions to COVID-19 vaccine mandates.
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On Wednesday, June 3, the Minnesota Supreme Court upheld the “severe or pervasive” standard used in workplace sexual harassment cases. But in doing so, it held that lower courts interpreting the standard must consider today’s definition of appropriate workplace conduct.
For the full alert, visit the Faegre Drinker website.