On August 22, 2023, the Equal Employment Opportunity Commission (“EEOC”) unveiled its four-year Strategic Plan for FY 2022-26, which it will use as a framework for its priorities and enforcement activity.  As relevant to employers, the Strategic Plan establishes 3 main goals for the EEOC:  

1. Combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities. Here, the EEOC notes that it will seek to ensure more conciliations and equitable relief versus “simply providing monetary damages.”
2. Prevent employment discrimination and advance equal employment opportunities through education and outreach.
3. Strive for organizational excellence through its people, practices, and technology.

With the exception of the note about equitable versus monetary relief, the EEOC’s strategic plan is otherwise insignificant and provides the same general priorities as plans in prior years.

Over the summer, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document titled “Visual Disabilities in the Workplace and the Americans with Disabilities Act.” This guidance explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities.  The new guidance is part of a Q & A series addressing how the ADA applies to particular disabilities in the workplace. It outlines such topics as when an employer may ask an applicant or employee questions about their vision, how an employer should treat voluntary disclosures about visual disabilities, and what types of reasonable accommodations those with visual disabilities may need in the workplace.

Proper Questioning Surrounding Employers with Vision Impairments The guidance makes clear that “not everyone who wears glasses is an individual with a disability under the ADA.” Instead, when deciding if someone with a vision impairment who uses (or used, in the case of a past impairment) “ordinary eyeglasses or contact lenses” is an individual with an “actual” or “record of” a disability, the guidance instructs that an employee’s impairment should be assessed as it is corrected by the lenses. If using ordinary lenses results in no substantial limitation to a major life activity, then a person’s vision impairment does not constitute a disability under the ADA’s definitions of “actual” or “record of” a disability. The guidance provides that employers are generally not allowed to ask applicants about whether they have a vision impairment. However, if an applicant has an obvious impairment or voluntarily discloses the existence of a vision impairment, and based on that information the employer reasonably believes that the applicant will require an accommodation to perform the job, the employer can inquire whether the applicant will need an accommodation and the kind of accommodation the applicant will need. As to current employees, employers can ask about an employee’s vision impairment if they observe performance problems and reasonably believe that the problems are related to a vision impairment. Employers can also ask for such an employee’s medical information if they have observed symptoms or receive reliable information from someone like a family member or coworker that the employee may have a vision impairment.

Safety Concerns As with other types of disabilities, if an employer wishes to refuse to hire an applicant, or terminate or restrict an employee’s duties based on safety concerns related to the applicant or employee’s vision impairment, the employer must conduct an individualized assessment as to whether the individual can safely perform the essential functions of the job. Such determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence, and not on speculation or stereotyping.  Employers must also remember to consider whether any reasonable accommodation may be available that would reduce or eliminate the safety hazard.

Reasonable Accommodations The guidance also highlights that a wide range of possible modifications to the application process, or in the way an employee performs their work, can serve as reasonable accommodations for individuals with vision impairments. It lists many potential accommodations, including “assistive technology (such as text-to-speech software); accessible materials (such as braille or large print); modification of workplace/employer policies or procedures (such as allowing the use of guide dogs in the work area), testing (such as allowing alternative testing), or training; ambient adjustments (such as brighter office lights); [and] sighted assistance or services (such as a qualified reader).”  The guidance emphasizes, however, that this is not an exhaustive list and applicants and employees may need other forms of changes or adjustments.

A group of New York City home health aides is suing the New York Department of Labor (“DOL”) in an attempt to force the agency to resume an investigation of their allegations that they were not fully compensated for their time during 24-hour shifts.  The State was already investigating wage theft claims made by approximately 120 home health aides last year when the workers received a decision in their favor in a separate arbitration between the workers’ unions, 1199 SEIU and others, and dozens of private home care agencies.  The arbitrator determined that some errors in compensation practices were made by the home care agencies in the case and determined the employers participating in the arbitration must pay $30 million into a “special wage fund” covering unionized home health aides employed by 42 different agencies, including some of the workers whose claims were also under review by the DOL. 

Earlier this year, in May, the DOL sent out notices to the aides who had complained to the DOL, notifying them that it would cease investigating their claims of wage theft, in view of the aides having received restitution for those same claims through the arbitration, or other channels.  The letters from the DOL stated,  “We decline to investigate the allegations presented any further,” and “We understand other means are available for a resolution of your claim. Our decision is not a determination as to the validity of your claim.”

However, some of the aides are objecting to the settlement now, and the DOL’s own abandonment of their investigation, claiming that the arbitration “award amounted to pennies on the dollar per worker.” According to an article in THE CITY , “Aides had hoped that the state Department of Labor would continue its own investigation of the same claims for which they have been paid through the arbitral proceeding, which began in 2019.” 

The aides, represented by two nonprofit organizations, have commenced a lawsuit in New York State Supreme Court, largely around philosophical grounds, claiming that the Department of Labor had no right to cease its investigation into their wage theft claim.  Forework will monitor the lawsuit closely and advise clients in the home care industry of any required modifications in their practices and policies.

The New York State Pay Transparency Law (the “Law”) goes into effect on September 17, 2023. The Law requires New York State employers to disclose the “minimum and maximum annual salary or hourly range of compensation” that the employer in “good faith believes to be accurate” for a job, promotion, or transfer opportunity “that will be performed, at least in part, in the state of New York.” For commission-based positions, employers need only state that compensation is based on commission. In addition, employers must provide a job description for each such position (if one already exists) and keep records of the history of compensation ranges and job descriptions for each employment opportunity. Amendments to the Law clarify that the disclosure requirements encompass “a job, promotion, or transfer opportunity that will be physically performed outside of New York but reports to a supervisor, office, or other work site in New York.” The Law defines “advertisement” to mean making “available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.”  As a reminder, a salary disclosure law is and has been in effect for New York City employers since November 1, 2022. 

On August 11, the EEOC published proposed regulations implementing the Pregnant Workers Fairness Act, which became effective on June 27, 2023.  Although not final, the EEOC is expected to adopt these regulations in, largely, the proposed form.  Thus, in this article, we summarize the key provisions of the proposed regulations:

1. Employers will be required to accommodate pregnancy-related conditions, and in the proposed regulations, those conditions are defined broadly. There is no requirement that the condition be present with the level of permanency or severity as a regular disability.  Rather, temporary pregnancy-related conditions will be sufficient to obligate the employer to provide accommodations to pregnant workers.
2. Employees do not need to use any “magic” or specific language to request accommodations.  This means that employers will need to be informed and vigilant for potential accommodation requests from pregnant employees, very similarly to what they are obligated to do with disabled workers.
3. The regulations provide a non-exhaustive list of possible reasonable accommodations for pregnant employes, which include remote work.
4. The EEOC regulations establish four accommodations that it expects employers to provide in almost all circumstances.
5. The regulations remind employers that they cannot impose accommodations on employees who do not request them. 
6. Employers may only obtain a medical documentation to support a request for an accommodation if it is reasonable under the circumstances, and they remind employers that requests for documentation that violate the proposed rule could be considered unlawful coercion or retaliation.
7. Certain practices are explicitly prohibited.  Most of them are common-sense but it is worth noting that the regulations specify that requiring an employee to take leave when other accommodations are available would be considered a technical violation of the law.
8. In addition to prohibiting retaliation, the proposed regulations discuss examples of coercive action, which would also be unlawful under the law.

We will provide more information about these proposed regulations as it becomes available. In the meantime, employers should be cognizant that pregnant employees are a high-risk litigation category in any case and should proceed carefully when contemplating any action that could be considered an adverse employment action against a pregnant person.

Many employers, in the interest of efficiency, are beginning to incorporate artificial intelligence (“AI”) into their workplaces, and the Equal Employment Opportunity Commission (“EEOC”) has established that it will ensure that the incorporation of AI into the workplace does not violate federal employment laws. 

On August 9, 2023, a New York court filing revealed that a tutoring company that provides English-language tutoring services to students in China, iTutorGroup Inc. (the “Company”), agreed to pay $365,000 to settle claims that its use of an AI tool automatically rejected female applicants over 55 years of age, and male applicants over the age of 60.

The case, filed in 2022, was brought to the EEOC’s attention by an applicant who was rejected from a position with the Company, but later secured an interview by using a younger birthdate.  The EEOC filed a lawsuit against the Company on behalf of more than 200 applicants, alleging both age and gender discrimination.  The Company denied the allegations and continues to deny any wrongdoing.  Nonetheless, the Company settled the charges with the EEOC for a hefty price.

In addition to paying $365,000, in the settlement, the Company agreed to adopt anti-discrimination policies and conduct trainings.  The Company is also required to reconsider all applicants that were allegedly rejected because of their age.  With this settlement, the EEOC has set a precedent, and similar lawsuits will likely follow.

In addition to this groundbreaking settlement, the EEOC has shown a renewed interest in employment practices involving AI. As part of its Artificial Intelligence and Algorithmic Fairness Initiative, the EEOC issued a second technical assistance document (TAD) addressing AI use under Title VII of the Civil Rights Act of 1964 in May 2023.  Crucially, the document provides that employers cannot rely on a vendor’s assurances that its AI tool complies with federal employment laws, leaving the employer liable if the tool results in an adverse discriminatory impact.

As companies continue to incorporate AI at a rapid pace, and the technology continues to develop faster than any regulations, issues will continue to arise.  Plaintiffs’ employee firms may also pursue such cases, either individually or on a class action basis.

AI’s role in employment-related decisions offers both opportunities and challenges. While the use of automated decision-making tools can boost productivity, the iTutorGroup case serves as a stark reminder that employers must be vigilant in ensuring compliance with existing laws.

The National Labor Relations Board (“NLRB”) has yet again issued new standards by which it will judge employers’ workplace rules (such as codes of conduct).  The NLRB’s new framework is relevant to companies because it limits their ability to discipline or terminate employees for, what the employer would ordinarily consider, infractions of reasonable workplace rules.  Here, we discuss what employers need to know.

On August 2, 2023, the NLRB issued a decision in Stericycle Inc., re-introducing an employee-friendly standard for evaluating workplace rules.  Under this new standard, an employer’s workplace rule will be found “presumptively unlawful” if it “chills” employees from engaging in protected conduct under Section 7 of the National Labor Relations Act (“NLRA”).  Protected conduct under the NLRA includes “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection,” as well as the right “to refrain from any or all such activities.”  Thus, any work policy or procedure will be reviewed by the NLRB through this new – employee friendly – lens and if the policy does not meet the legal requirements, the policy itself will be deemed void and any employment action taken per the policy may be rescinded by the NLRB, with penalties imposed against an employer. 

Prior to this decision, the NLRB had a more balanced approach for determining the lawfulness of workplace policies, taking into consideration employers’ legitimate justification for its policies.  Now, the employer’s policy and application of that policy  may have to give way to the NLRB’s interest in promoting employee speech and union organization efforts or other “concerted” activity that is not in the context of union organization.

The decision expressly overrules the Board’s previous, more employer friendly decisions. In doing so, it dismisses the categorization approach, instead requiring a case-by-case analysis from the employee’s perspective.  The decision is a clear signal that the Board is adopting a more employee-friendly interpretation, with an increased likelihood of challenges to established workplace rules.

As a result of these NLRB changes, employers should:

1. Review Workplace Rules: Examine handbooks and policies for any provisions that might interact with Section 7 rights, such as personal conduct policies, non-disparagement provisions, social media policies, and confidentiality rules.
2. Tailor Rules Narrowly: The decision imposes a heavy burden on employers to justify their workplace rules.  Employers should consider aligning rules closely with specific business needs and articulate the justification clearly in the policies.
3. Consult Legal Counsel Before Taking Disciplinary Action: Engage with labor law counsel under attorney-client privilege prior to taking disciplinary action pursuant to workplace rules, to ensure that the action will not violate the new NLRB standards.
4. Stay Informed: The NLRB made an explicit statement that Stericycle does not provide detailed guidance.  As such, further guidance may come through memorandums or subsequent decisions.

The NLRB’s recent decisions, particularly in Stericycle, signify a clear shift towards a more employee-centric legal framework.  Employers must navigate this carefully, seek legal guidance as necessary, and ensure that their policies are crafted with precision and clarity.

“In March 2020, the federal government passed the CARES Act, creating several pandemic unemployment programs to support out-of-work Americans impacted by the COVID-19 pandemic. As New York State hit unemployment levels not seen since the Great Depression, the Department of Labor would go on to pay more than $105 billion dollars in unemployment and pandemic unemployment benefits between March 2020 and September 2021. As a result of this unexpected emergency, the Unemployment Insurance (UI) Trust Fund was depleted. Like dozens of states around the country, New York State borrowed funds from the federal government to maintain UI and pandemic benefits while the pandemic programs were in effect.

During periods in which there is an outstanding federal loan, New York State law requires contributing employers to pay an annual Interest Assessment Surcharge, or IAS. Beginning in June 2023, employers who make unemployment insurance contributions will be notified of the 2023 IAS amount due. Payment of the IAS is due within 30 days of the date of this notice. Unless the Federal government chooses to abate all or part of the interest incurred or the principal balance amount is repaid with no more interest accrued, businesses will be required to make annual IAS payments until all interest has been fully paid off.”