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Carolyn Rashby

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Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on employment issues arising in corporate transactions, and provides strategic counsel to clients on a wide range of workplace matters, including harassment and #MeToo issues, wage and hour, worker classification, employee accommodations, termination decisions, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies. Her approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

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On April 25, 2023, four federal agencies — the Department of Justice (“DOJ”), Federal Trade Commission (“FTC”), Consumer Financial Protection Bureau (“CFPB”), and Equal Employment Opportunity Commission (“EEOC”) — released a joint statement on the agencies’ efforts to address discrimination and bias in automated systems. 

The statement applies to “automated systems,” which are broadly defined “to mean software and algorithmic processes” beyond AI.  Although the statement notes the significant benefits that can flow from the use of automated systems, it also cautions against unlawful discrimination that may result from that use. 

The statement starts by summarizing the existing legal authorities that apply to automated systems and each agency’s guidance and statements related to AI.  Helpfully, the statement serves to aggregate links to key AI-related guidance documents from each agency, providing a one-stop-shop for important AI-related publications for all four entities.  For example, the statement summarizes the EEOC’s remit in enforcing federal laws that make it unlawful to discriminate against an applicant or employee and the EEOC’s enforcement activities related to AI, and includes a link to a technical assistance document.  Similarly, the report outlines the FTC’s reports and guidance on AI, and includes multiple links to FTC AI-related documents.

After providing an overview of each agency’s position and links to key documents, the statement then summarizes the following sources of potential discrimination and bias, which could indicate the regulatory and enforcement priorities of these agencies.

  • Data and Datasets:  The statement notes that outcomes generated by automated systems can be skewed by unrepresentative or imbalanced data sets.  The statement says that flawed data sets, along with correlation between data and protected classes, can lead to discriminatory outcomes.
  • Model Opacity and Access:  The statement observes that some automated systems are “black boxes,” meaning that the internal workings of automated systems are not always transparent to people, and thus difficult to oversee.
  • Design and Use:  The statement also notes that flawed assumptions about users may play a role in unfair or biased outcomes.

We will continue to monitor these and related developments across our blogs.…

Continue Reading DOJ, FTC, CFPB, and EEOC Statement on Discrimination and AI

As we discussed in a previous post, effective January 1, 2023, California employers must include pay scales in job postings, and a similar bill in New York was awaiting signature by Governor Kathy Hochul. The California Labor Commissioner has now issued guidance to assist employers in complying with the new law, and the New York State bill was signed into law on December 21, 2022 and is set to take effect on September 17, 2023.

California

The California Labor Commissioner recently published FAQs (adding to existing FAQs under the state’s equal pay law) with insights for employers on some gray areas in the new law:

Threshold for coverage.The FAQs clarify that an employer is covered by the pay transparency requirements if it reaches the threshold of 15 employees at any point in a pay period they compensate their workers at the minimum higher wage rate for the duration of the entire pay period and going forward as long as they have a minimum of 15 employees. Also, all employees, regardless of the number of hours worked or geographical location, will be included in the count, so long as there is at least one employee located in California.

Job postings for remote positions.The Labor Commissioner interprets the new law to mean that the pay scale must be included on a posting if the position may ever be filled in California, whether in-person or remote.

Information to include in job postings.The FAQs confirm that “pay scale” means the salary or hourly wage range that the employer reasonably expects to pay for a position, and can include just a set hourly or piece rate, rather than a range, if that is what the employer intends to pay. If the position’s hourly or salary wage rate will be based on a piece rate or commissions, the piece rate or commission range must be included in the job posting; however, the posting does not need to include bonuses, tips, or other compensation or tangible benefits provided in addition to a salary or hourly wage. Finally, the Labor Commissioner states that the pay scale must be expressly stated in the posting, and it will not be sufficient to comply with the new law to take shortcuts such as linking the salary range in an electronic posting or including a QR code in a paper posting that will then take the applicant to the salary information.…

Continue Reading Update on California and New York Pay Transparency Laws

Many employers and employment agencies have turned to artificial intelligence (“AI”) tools to assist them in making better and faster employment decisions, including in the hiring and promotion processes.  The use of AI for these purposes has been scrutinized and will now be regulated in New York City.  The New York City Department of Consumer…

A new law signed by President Biden brings significant changes to employers’ ability to require arbitration of certain disputes with employees and could lead to an increase in sexual assault and sexual harassment claims against employers in court.  On March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault…

In a development that will sound familiar to employers, California has reinstated the requirement, which had expired last fall, to make available to employees up to 80 hours of COVID-19 supplemental paid sick leave (“Supplemental Sick Leave”).  The new measure, Senate Bill (“SB”) 114, was signed by Governor Newsom on February 9, 2022, and the requirement to provide the new sick leave went into effect on February 19. Employees may use the new sick leave retroactive to January 1, 2022.

New Supplemental Sick Leave Requirements

Following is an overview of the new and more expansive requirements under SB 114, which applies to employers with more than 25 employees.

Hours of Leave.  Full-time employees are entitled to up to 80 total hours of Supplemental Sick Leave for specified reasons and divided into two 40-hour buckets, described below.  Part-time employees are entitled to prorated leave equivalent to either their typical hours worked in a week, or seven multiplied by the average number of hours they have worked each day in the last six months.

The two buckets of leave are as follows:

First, full-time employees may use up to 40 hours of Supplemental Sick Leave when they are unable to work or telework for any of these reasons:

The employee is subject to a quarantine or isolation period related to COVID-19, as defined by an order or guidelines of the California Department of Public Health, the U.S. Centers for Disease Control and Prevention, or a local health officer who has jurisdiction over the workplace (if the employee is subject to more than one order/guideline, the employee may use Supplemental Sick Leave for the minimum quarantine or isolation period under the order or guidance that provides for the longest such minimum period);…
Continue Reading California Reinstates and Updates COVID-19 Supplemental Paid Sick Leave for 2022

Governor Newsom recently signed into law SB 331 to impose a number of new restrictions on employment settlement, separation, and nondisclosure agreements. Here’s an overview of the new requirements, which apply to agreements entered into on or after January 1, 2022:

First, for settlement agreements involving claims of harassment or discrimination based on any protected…

Effective January 1, 2021, California employers will be required under Assembly Bill (AB) 685 to provide detailed notices to employees when there is a COVID-19 case in the workplace and to notify local public health departments of COVID-19 “outbreaks” in the workplace.  California employers should begin assessing their practices now to ensure that they will

…

On November 30, 2020, emergency temporary COVID-19 workplace standards (“ETS”) issued by the California Division of Occupational Safety and Health (“Cal/OSHA”) took effect.  The ETS, which requires stringent workplace protocols intended to curb the spread of COVID-19, applies to all California employers, other than those subject to the Cal/OSHA Aerosol Transmissible Disease standard or those with only one employee at the workplace who does not have contact with others.  Under the ETS, employers must adopt and implement a comprehensive COVID-19 prevention program that includes identification and correction of COVID-19 risks, employee screening, investigation of cases, use of face coverings and other protective equipment, exclusion of exposed employees, and provision of free COVID-19 testing in certain circumstances, among other requirements.  The ETS also mandates testing and other action when there are multiple infections or an “outbreak” in a workplace.

Cal/OSHA promptly published a “Frequently Asked Questions” document (“FAQs”), a one-page summary of the ETS, and a Model Prevention Plan.  These documents shed additional light on the ETS and how it might be enforced.

Below is an overview of the key takeaways from the new ETS and subsequent Cal/OSHA publications.

Basic Elements of the COVID-19 Prevention Program

The central feature of the ETS is the requirement that all employers implement a written COVID-19 prevention plan.  At a high level, the prevention plan must include the following:

  • Communication to employees about the employer’s COVID-19 prevention procedures;
  • Screening of employees for COVID-19, although employees may be asked to evaluate their own symptoms before coming to work;
  • Identification, evaluation, and correction of COVID-19 hazards;
  • Physical distancing of at least six feet unless it is not possible;
  • Use of face coverings, with only limited exceptions;
  • Use of engineering controls, administrative controls, and personal protective equipment as required to reduce transmission risk;
  • Procedures to investigate and respond to COVID-19 cases in the workplace, including to verify cases and receive information on test results and symptom onset;
  • COVID-19 training to employees;
  • Testing of employees who are exposed to a COVID-19 case, and in the case of multiple infections or a major outbreak, implementation of regular workplace testing for employees in the exposed work areas;
  • Exclusion of COVID-19 cases and exposed employees from the workplace until they are no longer an infection risk; and
  • Maintenance of records of COVID-19 cases and reporting of serious illnesses and multiple cases to Cal-OSHA and local health departments.

Closer Look: Training Requirements

 The ETS requires employers to provide training and information on the following topics:

  • The employer’s COVID-19 policies and procedures;
  • Information regarding COVID-19-related benefits;
  • The fact that COVID-19 is an infectious disease that can be spread through the air when an infectious person talks, vocalizes, sneezes, coughs, or exhales, that COVID-19 may be spread through surface contact, and that an infected person may have no symptoms;
  • Methods of physical distancing at least six feet apart and the importance of face coverings;
  • The fact that particles containing the virus can travel more than six feet, especially indoors, so other controls, including face covers and hand hygiene, must also be used;
  • The importance of frequent hand washing with soap and water for at least 20 seconds and the proper use of hand sanitizer;
  • Proper use of face coverings and the fact that face coverings are not respiratory protective equipment; and
  • COVID-19 symptoms, and the importance of obtaining a COVID-19 test and not coming to work if the employee has symptoms.

Closer Look: Investigation of COVID-19 Cases and Notification of Exposure

The ETS contains strict requirements for investigating COVID-19 cases in the workplace.  Employers must determine the day and time the COVID-19 positive individual was last present and, to the extent possible, the date of the positive diagnosis or appearance of symptoms.  Employers must determine which employees may have had a COVID-19 exposure by evaluating the activities of the COVID-19 case and all locations in the workplace the individual visited during the “high-risk exposure period.”  The ETS defines the “high-risk exposure period” as either (1) from two days before they first develop symptoms until 10 days after the symptoms have first appeared, and 24 hours have passed with no fever, or (2) from two days before until ten days after the specimen for the individual’s first positive test for COVID-19 was collected.

Within one business day, the employer must notify all employees who may have had COVID-19 exposure (and any authorized representatives, such as their union), as well as any independent contractors or other employers present at the workplace during the high-risk exposure period.   Importantly, the notice must not reveal the identity of the employee with COVID-19.  The FAQs clarify that notification is required only to employees who were potentially exposed by being within 6 feet of a COVID-19 case for at least 15 minutes over a 24-hour period during the high-risk exposure period.…

Continue Reading California Employers Must Comply with New Cal/OSHA COVID-19 Workplace Safety Standards

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