Artificial intelligence (AI) promises new efficiencies in making employment decisions: instead of human eyes having to review stacks of resumes, an algorithm-based selection process aids in making a “rough cut” based on objectively desirable characteristics. This ought to reduce the opportunity for human bias—read “discrimination”—to enter into the process. For the same reason, an employer’s use AI to identify candidates based purely on objective standards minimizes a candidate’s ability to allege that the decision considered any protected status such as their race, religion or national origin—in theory, at least.

Regulators have asked a legitimate question, however: what if the AI algorithm looks for characteristics that disproportionally, even if unintentionally, impact one kind of legally-protected status more than some other class? Consider this example: during a Zoom interview, AI reads facial expressions to capture information about mood, personality traits, and even honesty. (Yes, this is a thing.) What if an applicant has limited facial movement because of a stroke? Would that potentially impact AI’s assessment of a candidate’s “mood”?  (Hint: yes, it would.)

Continue Reading EEOC Guidance Tackles AI and Other Advanced Technologies in Employment Decision Making

New York City is poised to become the largest city in the nation to ban discrimination on the basis of a person’s height or weight.

Earlier this month, the New York City Council passed Bill INT 0209, new legislation that would add “height” and “weight” to the list of classes protected under the New York City Human Rights Law. If the mayor signs or takes no action, the bill becomes law and will take effect 180 days thereafter.

Currently, there are a number of jurisdictions with similar laws banning height and weight discrimination, including Michigan state, Washington State, Washington D.C., San Francisco and a handful of other smaller jurisdictions.  Potentially marking a trend, lawmakers in New York State, New Jersey, and Massachusetts have also eyed similar legislation.  

Here’s what New York City employers need to know about this likely new law:

  1. The law would not apply when the employer’s action is required by federal, state, or local law or regulation.
  2. The law empowers the NYC Commission on Human Rights to establish jobs or categories of jobs for which (a) a person’s height or weight could prevent the performance of the essential requisites of the job, and (b) the Commission has not found an alternative action an employer could reasonably take to allow the person to perform those requisites. Similarly, the Commission may identify jobs or categories of jobs for which consideration of height and weight is reasonably necessary for the execution of the normal operations of the jobs.
  3. Finally, the law offers employers an affirmative defense. Employers may consider height and weight if they can demonstrate that these characteristics are essential qualifications for performing the job.

What should employers do to prepare?

Continue Reading Height and Weight Set to Become Protected Classes in New York City

For New York employers, the standards for sexual harassment may be shifting. The state requires all employers to adopt its model sex harassment policy or craft one that equals or exceeds minimum standards. Recently, the New York State Department of Labor released a new model policy developed in conjunction with the New York State Division of Human Rights.

This guidance sheds fresh light on how state enforcers are thinking about sexual harassment and employer responsibilities. New York employers beware – while not a statute, the guidance signals a clear and continued shift towards employees. To emphasize the new model, the guidance provides a host of concrete examples to guide employees, companies, and courts alike in deciding when conduct crosses the line into harassment. However, whether or not the judges will adopt the same expansive views as the agencies have, remains to be seen.

Here’s what you need to know:

The Model Policy Reflects the Law’s Lowered Bar for Wrongdoing

Back in 2019, lawmakers drastically upended the standard for what constitutes sexual harassment by removing the long-standard “severe and pervasive” requirement for conduct to be considered illegal. We’ve covered this in-depth.  

Continue Reading Notice for New York Employers: State Issues Updated Guidance on Sex Harassment 

2023 is in full swing. While everyone is abuzz about ChatGPT taking over the world, a newly divided Congress is finding its sea legs and state capitols are eyeing new regulations. Agencies and courts have taken up hot-button labor and employment matters, from noncompetes to biometric privacy. And not to be left out, the NLRB and the FTC have taken aim at employment contracts and severance agreements.

What will this all mean for employers? There are challenges for sure, but with planning they are manageable. We take a look at the top trends that will shape labor and employment law in the months to come.


More enforcement

Given trends from last year and public messaging from top enforcers, we anticipate an increase in harassment and discrimination litigation, particularly for class-based claims.

In its recently released 2022 Financial Report, the EEO signaled its plan to strengthen enforcement around systemic discrimination. The Agency heralded several victories including obtaining $29.7 million in monetary benefits for victims and collecting over $28 million in damages from 10 lawsuits asserting systemic discrimination last year. Enforcers also recovered a combined $403 million from the Agency’s top 10 settlements of 2022 (nearly doubling rates from the previous year). Highlights include an $18 million settlement with Activision Blizzard over sexual harassment and pregnancy-bias claims and $8 million from Circle K stores over disability and pregnancy discrimination issues.

Even more, the EEOC’s enforcement hike has considerable support from the White House. The President’s proposed budget requests $481 million for the EEOC – a 5.7% increase over its 2023 allocations. While this money is unlikely to materialize in full, it does underscore the growing political support for anti-discrimination and harassment enforcement.

Continue Reading Employment Laws Shaping 2023

There’s been another flip-flop at the National Labor Relations Board. The target this time? Severance agreements.

During the Trump administration, the NLRB issued a set of rulings that generally allowed employers to include confidentiality and non-disparagement clauses in severance agreements. These provisions are used to protect an employer’s reputation from disgruntled former staff while safeguarding the more sensitive details of the agreement (such as compensation) from public view. Last week, the Board wiped the deck with these Trump-era decisions. Now, any such clause may be deemed unlawful if it too broadly restricts a worker’s rights, including to speak out against their former employer.

What does this mean for severance agreements past and future? We take a look.

Continue Reading Talking About The NLRB’s New Rulings on Confidentiality, Non-Disparagement, and Severance Offers

Two momentous decisions regarding the Illinois Biometric Information Privacy Act (BIPA) recently came down from the Illinois Supreme Court. First, the Court recently ruled in Cothron v. White Castle System Inc. that a BIPA violation occurs with every scan or transmission of biometric data, i.e. a new violation accrues every time an employee uses a biometric time clock, potentially several times per work shift. Many BIPA cases have previously been resolved on the premise that an individual could only accrue one BIPA violation and the damages would be limited to the first time a biometric marker is collected in violation of the statute. Going forward, however, the law of the land has changed and the potential damages are exponentially higher.

Continue Reading BIPA Becomes the Monster Employers Feared

Webinar Invitation

Thursday, February 2, 2023 at 12:30pm ET

The Federal Trade Commission’s (“FTC”) proposed rule banning the use of non-competes with employees and workers could regulate almost all employers in the nation. If this proposal becomes final it could also prohibit non-disclosure, non-solicitation, and non-recruitment agreements that prevent employees from jumping to rivals.  

Join Kelley Drye in a discussion to explore how this proposed rule may impact your company and get practical tips on how employers can prepare for a world with endangered noncompetes.

We will cover the following topics:

  • What exactly would the proposed rule prohibit?
  • Could a rule this sweeping become final?
  • What can we expect in the next several months?
  • What should employers do to prepare? 

To RSVP for this webinar, please click here.

The FTC’s proposal to ban noncompete clauses is vulnerable to challenge. Kelley Drye’s Antitrust and Competition attorneys (who are also former FTC officials) share their thoughts on the most significant concerns. Read more on the agency’s authority to propose this ban, how to engage in the rulemaking, and what challenges we’re likely to see in the courts. –

When the FTC proposes a rule that could regulate nearly every employer in the nation, we take notice. In this second installment of our series on the FTC’s proposed rule to ban noncompete agreements, we provide a pragmatic look at the road ahead.

What has the FTC actually proposed? How can individual firms and industry groups alike weigh in on one of the most substantial regulatory actions facing employers right now? And what should businesses do to prepare? Here’s your deep dive. 

Continue Reading FTC Insights: How Employers Can Prepare for a World Without Noncompetes

On January 5, 2023, the Federal Trade Commission announced a sweeping proposal to regulate virtually every labor and service relationship in the United States, and make it more lucrative for people to quit. leave their current jobs by removing the enforceability of non-compete clauses. If a final rule emerges from this proposal, virtually every employer in the United States will be impacted.

William Macleod, chair of Kelley Drye’s Antitrust and Competition practice and former bureau director at the U.S. Federal Trade Commission (FTC) weighs in to address the broad implication of this proposal, the thinking behind the agency’s proposal, whether or not the agency can change course, and what will happen if a final rule emerges?  Click here to read more –