Significant new guidance from the Department of Justice (DOJ) and Equal Employment Opportunity Commission (EEOC) advises employers that use of AI and algorithmic decision-making systems in employment-related decisions may violate the Americans with Disabilities Act. In other AI news, automated decision-making and algorithmic bias became focal points at three major industry conferences held in the past month, as industry leaders work to get ahead of the rising tide of regulations targeting AI.
Category: Counseling & Compliance Training
Third Circuit Rejects Employer’s Attempt to Block Executive’s Move to Rival Despite Non-Compete Agreement
As we have written about previously, an increasing number of states, and Washington, D.C., have limited the circumstances under which employers can bind their employees to non-compete and similar agreements, particularly when low-wage workers (however defined) are involved. The courts, however, are not immune to the trend, as evidenced by the April 21, 2022 decision from the U.S. Third Circuit Court of Appeals, ADP, Inc. v. Levin. In that case, the Third Circuit affirmed a district court’s denial of a preliminary injunction against a senior executive who had resigned from his Chief Strategy Officer position at his prior employer, ADP, to take over the Chief Executive Officer position at rival Benefitfocus.
Summary of Cal/OSHA’s Revised COVID-19 ETS Adopted on April 21, 2022
On April 21, 2022, the California Occupational Safety & Health Standards (Cal/OSHA) Board voted to readopt its COVID-19 prevention emergency temporary standards (ETS) incorporating changes Cal/OSHA posted in preparation of its business meeting on April 21, 2022. If approved by the Office of Administrative Law (which is expected), the revised ETS will become effective upon filing by the Office of Administrative Law with the Secretary of State. This is the third readoption of the ETS, which was authorized by Gov. Gavin Newsom’s Executive Order and will be in place until December 31, 2022.
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Massachusetts Employers Be Warned: Telling Employees “Your Wages are Coming, Your Wages are Coming” May Lead to Treble Damages
On April 4, 2022, the Massachusetts Supreme Judicial Court held, in Reuter v. City of Methuen, that employers are strictly liable for treble wages as liquidated damages if they fail to make timely payments upon an employee’s termination of employment in compliance with the Massachusetts Wage Act. With its holding, the Court rejected a longstanding trial court precedent that employers who failed to make timely wage payments were liable only for treble interest.
The Massachusetts Wage Act
Section 148 of the Massachusetts Wage Act requires employers to pay unpaid wages to any employee discharged from employment “in full on the day of [the employee’s] discharge.” Mass. Gen. L. C. 149 § 148. As an enforcement mechanism, the Act provides a private right of action for employees and mandates that employees who prevail on § 148 claims “shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall be awarded the costs of litigation and reasonable attorneys’ fees.” The Act specifically defines “wages” to include, among other things, “any holiday or vacation payments due an employee under an oral or written agreement.”
NYC Releases Fact Sheet on Salary Transparency Requirements in Job, Transfer and Promotion Advertisements – While the City Council Debates Delaying Enactment of the New Law
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.
New OFCCP Directive Rolls Back Previous Administration’s Contractor-Friendly CERT Principles
On March 31, 2022, the Office of Federal Contract Compliance Programs (OFCCP) issued its second directive of the Biden administration, Directive 2022-02, titled “Effective Compliance Evaluations and Enforcement.” The policies outlined in the new directive signal the end of the contractor friendly policies of the Trump era and a return to an enforcement heavy compliance regime.
Directive 2022-02 revokes several Trump era directives including Directive 2018-06, Contractor Recognition Program (Aug. 24, 2018); Directive 2018-08, Transparency in OFCCP Compliance Activities (Sept. 19, 2018); Directive 2020-02, Efficiency in Compliance Evaluations (Apr. 17, 2020); and Directive 2021-02, Certainty in OFCCP Policies and Practices (Dec. 11, 2020). These policies were initially developed as a part of the OFCCP’s CERT initiative towards certainty, efficiency, recognition and transparency in compliance.