Equal Employment Opportunity Commission Initiative
A new EEOC initiative will focus on fairness, guidance, and federal regulation compliance regarding artificial intelligence and other emerging technologies used by employers throughout the employment process. The use of AI and algorithmic tools have become more prominent as employers work to streamline hiring workflow, and the EEOC is preparing a mandate to not just provide ongoing guidance against workplace bias, but also ensure that companies using AI tools during employment decisions comply with present and future federal civil rights and antidiscrimination laws.
Employment Advertising in California
California employers take note: A new Department of Fair Employment and Housing initiative will focus on uncovering violations of the Fair Chance Act by using technology to identify discriminating content within employment advertising. For example, The Fair Chance Act bans general “criminal history” statements in a job advertisement such as “No Felons” or “Must Have Clean Record.” Utilizing technology to conduct mass searches of online job ads for statements violating the Fair Chance Act have already led to the identification of hundreds of violations in a single day of analysis. DFEH will continue to document violations and send notices requiring employers to remove unlawful statements.
Michigan Date of Birth Redaction
As previously shared, a new Michigan rule—initially scheduled to go into effect by January 1, 2022—would have begun a process of removing date of birth (DOB) from public facing court records.
This of course would have all but eliminated the ability of background screening companies to conduct background checks for Michigan businesses. At best, it would make background screening in Michigan quite cumbersome and time consuming for both Credit Reporting Agencies and their customers. Fortunately, and after months of negotiation, the Michigan Supreme Court amended its personal identifying information (PII) court rule impacting background checks—creating an “authorized user” approach for access to PII in court records.
This solution is intended to balance protection of personal identity with the need of background companies to access information within records to verify identity. The court rule will now go into effect on April 1, 2022. We will continue to monitor developments on this issue up to April 1, 2022, and keep you updated as more information becomes available.
I-9 AND E-VERIFY
Ongoing Extension: Form I-9 Requirements in response to COVID-19
Because of ongoing COVID-19 precautions, remote I-9 document review has been extended; the expiration date for these accommodations is now April 30, 2022.
UPDATE: The DHS is currently exploring the possibility of making the remote document verification option for Form I-9 permanent. This is welcome news as many trend toward permanent hybrid work solutions, and is encouraging that the government is closely following workplace trends and is willing to take a look at updating the Form I-9 process. We will keep a close eye on this and let you know as more becomes available.
SUBSTANCE ABUSE TESTING
Effective January 1, 2022, new legislation in the city of Philadelphia, PA, now prohibits employers from testing candidates for marijuana as a condition of employment. The law states that except as provided in exceptions—law enforcement, commercial driving positions, supervision of children or vulnerable individuals—it is unlawful for an employer, labor organization, or employment agency to require marijuana testing when making employment decisions. Employers should review their current drug and alcohol testing policies for compliance.
Recreational marijuana becomes legal in Montana beginning January 1, 2022. Employers, please note that the new bill considers marijuana a lawful product, and employment decisions cannot be made based on cannabis use during nonworking hours. Employers are encouraged to review their policies regarding marijuana and drug testing.
Will 2022 be the year for a national privacy law? Perhaps, or perhaps not, but there are many proposals at state and federal levels to negotiate what key issues should be part of such legislation. Of much interest is focus on congressional efforts in tandem with action at the state level, employment discrimination based on use of IA and big data, and concern in the EU with data transfer to the United States. Much more to come!
Questions? We’re here to help!