In May, the U.S. Department of Justice announced that 10 employers have settled claims that they violated the Immigration and Nationality Act (INA) by posting discriminatory job advertisements on a college recruiting platform. These actions have cost individual employers over $300,000 and serve as a warning to make sure that online job boards are compliant with the INA before posting to them.
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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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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.
The Department of Justice Antitrust Division (DOJ) recently suffered significant losses in two criminal trials involving alleged criminal wage-fixing and related “no-poach” agreements by and between competitors. These were the first cases ever where the parties have proceeded to trial after the DOJ pursued criminal charges under Section 1 of the Sherman Antitrust Act predicated on such conduct. The Sherman Act includes penalties for criminal violations of the statute that can reach up to $100 million per violation for companies, and individual defendants can face $1 million fines and up to 10 years in prison. While the DOJ’s trial setbacks raise legitimate questions regarding the efficacy of its aggressive antitrust enforcement agenda — particularly in labor markets — the primary federal agency tasked with enforcing criminal violations of federal antitrust laws shows no signs of pulling back on similar investigations and prosecutions in the future.
Non-compete agreements between employers and their employees traditionally are governed by state law. But that did not stop the Antitrust Division of the Department of Justice (DOJ) from recently filing a statement of interest encouraging a Nevada state court to consider federal antitrust principles to invalidate non-compete agreements between a large medical group and its physician-employees. Taken together with other recent actions by the president and federal enforcement agencies, the DOJ’s decision to file this statement signals a more aggressive approach to non-compete enforcement at the federal level.
On February 10, 2022, the National Labor Relation Board’s (NLRB) General Counsel, Jennifer Abruzzo, issued Memorandum GC 22-03 announcing her agreement with and support of the Biden administration’s Task Force on Worker Organizing and Empowerment (Task Force) February 7, 2022 report. The Task Force was created by executive order in April 2021 to identify ways the executive branch can promote worker organization and collective bargaining through existing policies and programs. The Task Force’s report included recommendations to increase organizing and encourages collaboration between government agencies focused on worker protection. In addition to instructing field offices to adopt the recommendations outlined in the report, Abruzzo’s memorandum details current interagency undertakings and outlines future efforts to strengthen those collaborations.
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