Over the last several years, federal and state governments have pushed employers to reemploy offenders, such as through tax incentives and subsidized training. Despite the public interest in such initiatives and programs, the insurance industry should take caution and consider specific, ongoing statutory obligations regulating or barring employment of individuals with certain criminal records.
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).
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.
On March 14, 2022, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document, the COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Laws, which explains how discrimination against applicants and employees with caregiving responsibilities can violate federal equal employment opportunity (EEO) laws. Although EEO laws do not prohibit discrimination against caregivers specifically, there are some circumstances in which discrimination against caregivers may be unlawful. Because the COVID-19 pandemic has created — and exacerbated — competing job and caregiving demands for individuals as they navigate hybrid work schedules, unexpected closures of school and care facilities, and potential COVID-19 exposure, the EEOC’s updated information may inform employer decisions and actions as they adapt their workplaces to the evolving COVID-19 pandemic.
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.
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.