How To Be “Smart” About Using Artificial Intelligence In The Workplace

Posted in Employee Handbooks & Policies, Employment Discrimination Harassment & Retaliation, Labor Relations, Privacy

Artificial Intelligence (AI) is undoubtedly revolutionizing the workplace. More and more employers are relying on algorithms or automated tools to determine who gets interviewed, hired, promoted, compensated, disciplined, or terminated. If adequately designed and applied, AI can help employees find employment, match employers with valuable employees, and advance diversity, inclusion, and accessibility in the workplace. Yet, despite its positive impacts, AI poses new risks for employment discrimination, especially when designed or used improperly, and has become a focal point of targeted efforts by federal and state enforcement agencies and lawmakers. Employers must be smart, transparent, and knowledgeable about how they use AI in their workplaces. When used properly, AI tools could potentially make employment processes faster and more efficient, while eliminating both conscious and unconscious bias. 

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What’s in Store for the Next Four Years? – Part Two: The EEOC’s Strategic Enforcement Plan

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

The U.S. Equal Employment Opportunity Commission (EEOC or Commission) recently published its substantive agency enforcement priorities to combat employment discrimination and promote inclusive workspaces over the next four years. The EEOC periodically adopts a multi-year plan to guide fulfillment of its mission to prevent and remedy unlawful discrimination in employment. We discussed the EEOC’s overall logistical plan to achieve and monitor its general and long-term goals and objectives in our blog post earlier this month about the EEOC’s Strategic Plan (2022-2026). Now we have details about the subject matters where the EEOC will steer its efforts. In the EEOC’s Strategic Enforcement Plan 2023-2027 (SEP) (draft released January 10, 2023), the EEOC strives to get the most “bang for its buck.” So, to maximize its effectiveness, expect the EEOC to focus on activities that have a significant impact on the development of the law or on promoting compliance across a large organization, geographic region, or industry.

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Overbroad and Overstepping? FTC Moves to Ban Non-Competes Nationwide

Posted in Non-Compete & Trade Secret Litigation

Only days into the new year, the Federal Trade Commission announced a controversial proposed rule that would potentially ban all non-compete agreements nationwide. While the proposed rule would not take effect until the end of a 60-day public comment period, at the earliest, it has left employers wondering how they can protect their businesses should it become binding? The actual impact of the proposed rule depends on the legal challenges and substantial revisions the rule is likely to face, but, at this point, here is what employers need to know.

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What’s in Store for the Next Four Years? The EEOC’s Strategic Plan

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

The EEOC promises to secure greater equitable relief, to better investigate systematic discrimination, and to improve its customer service over the next four years, among other New Year’s resolutions. In its draft EEOC Strategic Plan 2022-2026 (released November 4, 2022), the agency sets forth 3 overarching goals and 15 identified performance measures for the purpose of achieving those goals. Although the comment period has ended, the EEOC has not yet published the final version of its Strategic Plan. Aside from potential changes to its preliminary plan, the EEOC concedes that budgetary, demographic, legal, and technological factors may impact its success in achieving its stated goals. Employers should brace themselves for the impact the EEOC’s manifestation of its performance measures may have over the next four years.

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Surprise Surprise, the NLRB Continues Expanding Employee Protections

Posted in Employment Counseling & Workplace Claims Prevention, Labor Relations, Privacy

Imagine this: a nurse leaves the operating room during spinal surgery to participate in a union action, the employer terminates the nurse, and the National Labor Relations Board (NLRB) holds that the employer violated federal labor law by terminating the nurse. That is exactly what happened to a New York hospital recently when the Board compared the nurse’s actions to a non-union employee who acted in a similar manner and was not disciplined, and found that the hospital violated the law. This is just one of many hard to believe examples of the NLRB’s continued push to expand the protections offered to employees. 

With the expanded focus on employee protection, a major area the NLRB continues to focus on is the expansion of what constitutes “protected concerted activity.” One example of this expansion is that employers must be aware that behavior that looks on its face to be harassment may be considered protected concerted activity by the NLRB. Further, the NLRB has even suggested that a single employee’s workplace complaint could constitute protected concerted activity. Over the last month, the NLRB has continued to push the limits on protecting employees and the expansion of protected concerted activity. 

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LGBTQ+: What’s the Fuss?

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

The Respect for Marriage Act is now law, upholding recognition of interracial and same-sex marriages, and the U.S. Supreme Court has held that sexual orientation and gender identity discrimination in the workplace is illegal, but what rights do LGBTQ+ employees have in the workplace and how inclusive must employers be? The EEOC’s attempt to provide employers guidance has been thwarted, most recently by a federal court in Texas, and earlier this year in a legal challenge regarding state sovereignty rights. In the meantime, employers are left to strike a delicate balance between non-discrimination, inclusion and accommodation, under applicable and sometimes competing federal and state mandates.

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Silenced No More: The Speak Out Act Set To Curb Nondisclosure Agreements For Victims Of Sexual Misconduct

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Employers who have made use of pre-dispute nondisclosure and nondisparagement agreements will now have to change those practices and reevaluate their existing agreements thanks to the “Speak Out Act” (the “Act”) – a bipartisan piece of legislation born out of the #MeToo movement. The Act, which President Biden recently signed into law, is poised to nationalize a budding statewide trend that aims to make it easier for workers to speak out against sexual harassment or abuse in the workplace.

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Don’t Be Left Out In The Cold on Effective Performance Reviews: Five Tips You Need To Know

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

‘Tis the season for employee performance reviews! In the midst of the chaos that is the holiday season and end-of-year deadlines, employee performance reviews are often scheduled during this busy time of the year. An impending performance review may cause stress and angst for both the manager who has to issue the performance review and for the employee who is on the receiving end of the feedback, but it does not have to be that way. Employers should resist the urge to approach employee performance reviews as another box to check off the holiday “to-do” list, and make sure to follow these five best practices:

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Saying The Quiet Part Out Loud: When Employee Talk About “Quiet Quitting” Could Become Protected Speech

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

By now, many employers have heard about “quiet quitting.” Though the term’s meaning varies depending on who’s using it, it generally refers to employees doing only as much work as the job requires without going the extra mile. Employers may view quiet quitting as lack of engagement or laziness, but employees may see it simply as setting clear boundaries at work and providing exactly the output the employer has asked them to provide. Either way, when employees start talking about quiet quitting, their speech may be protected by federal law, and HR professionals should proceed with caution.

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Policing Politics In The Workplace – Keeping The Peace On Election Day And Beyond

Posted in Employment Counseling & Workplace Claims Prevention, Medical & Other Leaves

With early voting and vote by mail, methods of voting have become easier and more flexible and convenient than ever before—but policing politics in the workplace can be trickier than interpreting a hanging chad! Here’s what employers can do to ensure that a color war of red and blue does not ensue, after navigating through the patchwork of “time off” to vote and other voting leave laws.

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