On November 24, 2022, New York will open a one-year “lookback” window that will revive older sexual abuse claims that were previously barred by applicable statues of limitations and allow victims to file suit against responsible parties regardless of when the abuse occurred.  The lookback window is the result of the recently-enacted Adult Survivors Act (“ASA”). The ASA is an analogue to New York’s Child Victims Act (“CVA”) of 2019. The CVA revived the claims of victims who were under eighteen at the time of abuse. In contrast, the ASA applies to victims who were eighteen or older when the abuse occurred.

Like the CVA, the ASA revives otherwise time-barred claims based on both intentional and negligence theories of relief.  This means that companies that formerly employed abusers may be sued and held liable under vicarious liability theories – such as negligent hiring, training and retention – even where the employer had no direct knowledge or involvement in the abuse.
Continue Reading New York Employers Must Take Action to Secure Insurance Coverage for the Coming Wave of Sexual Abuse Claims Under the Adult Survivors Act

Employers can be forgiven for diverting their attention during the past three years to pressing pandemic-related employment issues—vaccine mandates, return-to-work challenges, managing hybrid workforces, with all the novel and thorny legal issues that emerged from a transformed workplace. But in an ever-changing employment law landscape, a new compliance challenge has emerged: federal, state, and local regulations governing the use of artificial intelligence (“AI”) in the hiring process. These new laws and regulations are a perfect storm for liability. They are new and unfamiliar, and they are easy to violate despite employers’ best intentions.

The rise of single-click job application programs like “Easy Apply” on LinkedIn or “1 Click Apply” on ZipRecruiter has made it extraordinarily easy for applicants to submit job applications. But as any recruiting manager knows, the task of filtering resumes and job applications for hundreds of applicants per position ranges from difficult to almost impossible. So how does a hiring manager make a “rough cut” from the piles of electronically-submitted resumes and job applications?  Happily, AI offers a powerful tool for making that rough cut; unhappily, AI can result in employment decisions, literally without human intervention, that may violate anti-discrimination laws—or at least, that’s the regulatory concern, as an increasing number of jurisdictions have articulated it.

The idea of using AI in making hiring decisions is simple: machine-based algorithms can identify certain objectively desirable characteristics or experience in candidates, and in theory, those algorithms (precisely because they are supposedly objective) actually reduce the opportunity for human bias. The principal concern of regulators is that, at least so far, AI technology is a black box. To date, there has been little to no meaningful transparency in exactly what the technology is considering and evaluating in that algorithmic process of making the rough cut. The plethora of new regulation is aimed at exactly this perceived lack of transparency.
Continue Reading The New Regulatory Frontier: Using AI Tools is About to Become More Difficult

On July 1, 2022, new obligations will be placed on Chicago employers under the City’s heightened sexual harassment protections for employees. The amendments to the Chicago Human Rights Ordinance (Ord. 2022-665) were only passed by the City Council on April 27, 2022 – are you and your business compliant? A quick guide for a seamless transition for your HR department into the new summertime protections follows below.

Who needs to keep reading?

The Ordinance applies to any business, partnership, entity, or person that employs at least one employee in the City of Chicago in the current or preceding calendar year (in 2021 or 2022), and is subject to City licensing requirements or maintains a business facility within the City limits.

An employee under the Ordinance means anyone who is engaged to work within the City limits for monetary or other valuable consideration.…

Continue Reading Compliance Alert – City of Chicago Employers

As of May 7, 2022, new amendments to the New York Civil Rights Law (linked here) requiring New York employers to provide notice of electronic monitoring to employees went into effect.  If your company has not already taken necessary steps towards compliance, here is what you need to know.

Who does the law apply to?

Basically everyone –  the new law applies to “[a]ny employer who monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by any electronic device or system . . .”

The law defines “employer” broadly, covering “any individual, corporation, partnership, firm, or association with a place of business in the state.”  As such, most private employers, regardless of size, are covered by the new law.…

Continue Reading NY Requires Notice of Electronic Monitoring to Employees — Are You In Compliance?

Judge Thomas Rademaker, a New York State Supreme Court Judge in Nassau County, yesterday issued an order striking down the statewide mask mandate issued by the Department of Health in December, which requires that all state residents over the age of two wear face masks in all public places, including within all schools. Judge Rademaker found that the DOH had exceeded its authority with the order, which he equated to a “law.”

Governor Kathy Hochul reacted swiftly, publicly disagreeing with the ruling and appealing the decision. An appeals court judge granted a motion to temporarily block the earlier ruling by Judge Rademaker, putting the mandate back into effect only hours later.

As the pandemic continues, it seems the judiciary is again on a collision course with the executive branch, as the government attempts to stymie the spread of the virus.

The decision did not, on its face, criticize masks or mask rules, but invalidated the DOH order on more technical grounds. In fact, the judge took pains to state that the court was not against masks, and “prays that the era of COVID ends soon[.]”…

Continue Reading Governor Hochul Unmasked: New York Judge Strikes Down State Mask Mandate

New York State lawmakers have done it again – amending an often-forgotten whistleblower statute of limited application into a sweeping new source of employee rights that should make employers listen up and take notice.  Almost two years ago it was Section 741 of the New York Labor Law, focused on healthcare workers. This time, it’s Section 740, which applies to all private-sector employers. Below, we provide you with a run-down of the changes and how employers can prepare for the January 26, 2022 implementation date.

BACKGROUND

Although it has been around for decades, Section 740 is not the first law that comes to mind when an employer thinks of the various laws protecting its employees. That’s because the statute’s restrictions diminish its usefulness as a tool for employees seeking relief for an alleged retaliatory act. For example, the statute is narrow – it only applies when an employee discloses, or threatens to disclose, to the employee’s supervisor or a public body, an actual violation of law, rule or regulation that presents “substantial and specific” danger to public health or safety, or healthcare fraud. Even then, it only has a one-year statute of limitations and there is no right to a jury trial. And on top of that, even if an employee prevails, their remedies are limited to reinstatement, back pay, and attorneys’ fees, but not compensatory or punitive damages. Taken together, employees had little incentive to bring claims under Section 740.
Continue Reading I Hear That Whistle Blowing: New York’s Expanded Whistleblower Law Raises Volume On Employers