The New York State Department of Labor issued final regulations making amending and adding to long-existing regulations under  the New York WARN Act.  The revisions update the regulations to conform to certain statutory changes as well as provide clarification to other areas of the NY WARN law.

The final regulations became effective June 21, 2023 and are identical to the proposed regulations issued by the Department of Labor on March 29, 2023.

Among other notable changes, the revised regulations include a provision adding remote workers, whether inside or outside of New York, to the 50-employee count for the coverage threshold as an employer, as long as they are “based” at the employment site in New York.  In addition, the revisions provide a process for the Department of Labor to review and rule upon any employer requests to reduce the 90-day notice period based upon one or more exceptions in the NY WARN law. In the business transaction context, a purchasing business may now be held liable for failing to transfer employees, where such is a condition of the transaction. Employers considering restructuring or mass job terminations or layoffs should ensure that their counsel follows these updated regulations in determining whether WARN obligations apply to their particular situation.

With a new federal holiday on the books, many employers are questioning whether they need to pay wage premiums to employees who worked on Juneteenth.  In many industries, employees do work on holidays and it is customary to pay such employees a premium (such as time and a half) for working on a holiday.

As a general matter, there is no federal law that requires employers to pay employees premiums for working on any federal holiday.  Similarly, there is no obligation to pay non-exempt employees their regular wages if they are off on a holiday.  Therefore, employers are only obligated to pay holiday premiums to employees who work on a holiday, or to pay regular wages to employees who do not work on a holiday, if they wish to do so as a matter of company culture, benefits, and policy. 

In view of the above rules, companies that have policies that state that the company will pay a premium to any employee who works on a federal holiday are, by policy, obligated to paying premiums for employees who have worked on Juneteenth.  Conversely, companies that specifically identified by name those holidays that they will compensate to employees who work on those specific holidays, and who have not named Juneteenth as a paid holiday, are not required to pay wage premiums to employees who worked on Juneteenth.

Any changes in holiday pay policy should be communicated to employees in writing, especially in certain states, to ensure those changes are enforceable.

Q: One of our employees went home sick and never returned. After must back-and-forth, we fired him. However, he still has a company-issued laptop, with confidential patient information on it (we’re a medical practice).  What do we do to get the laptop back, and secure the confidential information on the computer from his further access or use?

A: Initially, employers probably cannot recoup the cost of the laptop by deducting earned wages from the employee’s last paycheck.  Many states prohibit such self-help measures.  And, the paycheck may not be sufficient to cover the cost of the laptop.  In addition, the potential HIPAA considerations in this case require that the employer secure the device itself or terminate the employee’s access.  Thus, here are the suggested steps when an employee who has a company-issued laptop departs or losses employment:

1. Remind the employee of any confidentiality and equipment-loaner agreements that they have signed during their employment. This notice can be done in writing or over the phone.
2. Notify the employee that any possession of confidential information and company equipment after the employment relationship has ended is unlawful and in violation of the agreement that the employee signed.  For HIPAA covered entities, the employee should also be reminded that they cannot view, print, copy or in any other way access PHI that might be stored on the company’s device.
3. Make arrangements for the employee to return the equipment.  Employers can even send messengers to their employee’s home to pick up the device.
4. If contents from the laptop are really in a cloud, the employer should shut the employee’s access to the cloud immediately and demand a certification from the employee that they have not made any copies of any confidential information on the laptop, printed any documents from computer, emailed to themselves protected documents, or somehow extrapolated PHI or other confidential information. 
5. When the computer is returned to the employer, review the usage history on the laptop to determine if/what the employee did with any confidential information in the days leading up to the termination and up until the device was returned.
6. If the employee fails to respond to the employer’s requests to return the property, the employer should consider criminal and civil avenues to enforce its rights. 

From facial analytic tools that assess employees’ attentiveness in meetings, to bots that screen applicants’ technology, to employee scheduling technologies, artificial intelligence is quickly infiltrating all aspects of business operations.  It is only natural that employers have begun to wonder if and how to AI can maximize their output and improve the bottom line. 

In the employment realm, the EEOC recently issued a “technical assistance” guidance document that explains the application of Title VII of the Civil Rights Act to automated systems that incorporate AI into a range of HR functions.  In the guidance, the EEOC warns that neutral tests or selection procedures, including algorithmic decision-making tools, that have a disparate impact on the basis of race, color, religion, sex or national origin must be job-related and consistent with business necessity; otherwise they are prohibited.  “Disparate impact” is, effectively, unintentional discrimination; a discriminatory result is reached without any intention to discriminate.  However, the guidance further states, “if an employer administers a selection procedure, it may be responsible under Title VII if the procedure discriminates on a basis prohibited by Title VII, even if the test was developed by an outside vendor.”

In addition to the federal EEOC guidelines, employers with employees in some states should be mindful of their state-specific laws for the use of AI in employment.  For example, in 2020, Illinois enacted the Artificial Intelligence Video Interview Act, which requires covered employers to: (1) obtain consent from job applicants before using AI, after explaining how the AI works and its evaluation standards; and (2) ensure proper control of video recordings and deletion upon request.

The same year, Maryland passed its AI-employment law, called H.B. 1202, which prohibits employers from using facial recognition technology during an interview for employment to create a facial template without consent (the law defines a proper consent). 

On July 5, 2023, New York City’s Department of Consumer and Worker Protection will begin enforcing Local Law 144, which regulates the use of AI in “employment decisions.” Before employers or HR departments use automated employment decision tools to assess New York City residents, they must generally: (1) conduct a bias audit; (2) notify candidates or employees residing in the city about the use of such tools; and (3) notify affected persons that they may request an accommodation or alternative process. Violations of the law are subject to civil penalties, which may accrue daily and separately for each violation.

Takeaways:  Initially, due to the remote nature of today’s workforce, employers must be mindful that they may be covered by the AI laws of the state where their employees work (even a single remote employee could trigger that state’s AI laws for the employer, in relation to that employee).  Secondly, employers should stay on top of these laws and ensure they are applying them to whatever AI technology they are using.  Now that we have entered the AI age, the technology will evolve rapidly over the next 10 years, and the law will evolve slightly behind.  Thus, it will be important to just monitor those legal developments if utilizing AI for employment purposes.