In our post earlier this week, we covered recent developments in state and local labor and employment laws in the states at the beginning at the alphabet. We now turn our attention to developments in the remaining states.
Now that we’re almost half-way through 2022, it’s time again to cover all of the development in state and local labor and employment laws. It’s been a busy time in the state legislatures and city councils, with lots of new laws and amendments to existing laws. In fact, due to the large number of updates, we are splitting our post into two parts. Today’s update covers states in the first half of the alphabet. We’ll post part two, with updates for the remaining states (Ohio through West Virginia), later this week.
Most employers know that under the Family and Medical Leave Act (FMLA), employees who have worked at least one year (and at least 1,250 hours in that year) have the right to take leave for their own or a close family member’s serious health condition, among other reasons. And most employers that are subject to the FMLA (those that have at least 50 employees) understand that denying a qualified employee the right to take that leave would be a violation of the FMLA, as would retaliating against the employee for taking protected leave. But what about an employer that simply discourages employees from using available FMLA leave? Can that alone – simply suggesting it would better not to take FMLA leave, even if the request itself is not denied – violate the law?
You’ve just been informed that an employee who apparently contracted COVID-19 from an exposure in your workplace brought the virus home, and now his spouse, who is in a high-risk category, has contracted the virus and is in the hospital. Do you as the employer face potential liability for the spouse’s illness?
More than two dozen so-called “take-home” COVID-19 lawsuits have been filed across the country, including against some of the largest employers in the US. This alarming pattern has prompted trade groups to warn employers of the potential for lawsuits stemming from COVID infections filed not only by workers’ family and friends, but by anyone infected by that circle of people, creating a seemingly endless chain of liability for employers. Some states have enacted laws shielding employers from such suits, but where that is not the case, the legal theories and procedural paths under which these suits have proceeded vary – including some being brought in state courts, some in federal courts, and others brought under claims within the worker’s compensation system.
So following our recent post on proposed new regulations it’s not just the EU which is looking askance at the potential risks of artificial intelligence in recruitment. From across the pond comes news that the US Department of Justice has warned employers to take steps to ensure that the use of AI in recruitment does not disadvantage disabled job candidates, or else face the pain of breaching the Americans with Disabilities Act. The ADA already requires US employers to make the equivalent of the UK’s reasonable adjustments to allow disabled candidates to take part fairly in the recruitment process. However, both the ADA and the Equality Act were conceived well before the widespread use of AI in recruitment. Consequently there is concern that automated decision-making originally designed to reduce the scope for subjectivity and bias may actually create new disadvantage for candidates with disabilities, usually by screening out individuals who, by reason of their medical conditions, do not match the “ideals” which the algorithm is looking for.
Many businesses use artificial intelligence (“AI”), algorithms, software, and other forms of technology to make employment-related decisions. Employers now have an array of computer-based tools at their disposal to assist them in hiring employees, monitoring job performance, determining pay or promotions, and establishing the terms and conditions of employment. As such, many employers rely on different types of software that incorporate algorithmic decision-making and AI at a variety of stages of the employment process.
A basic principle of good employment law, you would think, should be that you can tell an employer when you are caught by it and when you are not. An early fail then for the rules around worker status, in particular following the EAT’s recent decision in Johnson –v- Transopco UK Limited, which appears to bring into express consideration in that question factors over which the employer will rarely have any knowledge, let alone control.
Back in November last year I wrote a series of posts here on all the whizzy new features offered by our updated international employment law resource, Global Edge 2.0. Since then (I claim only substantial credit for this), the thing has just flown out of the door.
Recent client feedback on it has included these three kind offerings:
In a world where data is key and we all want immediate information, Global Edge is a unique platform that allows me to pull comprehensive digital employment law reports, covering multiple countries, and give high level, on-point advice to my senior leadership team. It helps me to be strategic, knowledgeable and proactive, at the click of a button. While there are other similar products, none of them break down the employment law guidance to the same practical level as Global Edge and the fact I know it is regularly updated and kept accurate is also a key differentiator. I find the “On The Horizon” feature to be very helpful in issue-spotting and briefing regional leadership when planning for the months ahead, and it’s also been particularly helpful during COVID-19, with the raft of new legislation and quickly changing guidance. The “At a Glance” feature is also fantastic, as the questions always seem to tune into something I’ve been asked by the business. You can tell it is written by experienced employment lawyers who know what is a hot topic for business right now.
For the last year or so the EU Commission has been working on the world’s first serious attempt to create a regulatory framework around the use of AI, the Artificial Intelligence Act. The Proposal itself runs to over 100 pages of dense type and no pictures, so is a fairly off-putting read at first look. However, there are within it a number of provisions which may have significant repercussions for employers in the UK, let alone the EU.
The Office of Federal Contract Compliance Programs (OFCCP) will soon require federal contractors to use a Contractor Portal to register and certify that they have their required Affirmative Action Programs (AAP) in place. The portal launched February 1, 2022. Registration began on February 15 and certification began on March 31. Continue Reading
