Employment Law This Week®: DOL Enforcement Records, CSAL Supplement, AI Technology, NJ's Gig-Worker Bill

This Employment Law This Week^® Monthly Rundown discusses the most important developments for employers heading into December 2019. The episode includes:

1. Federal Agencies Hit New Enforcement Records

The Department of Labor announced that both the Wage and Hour Division and the Office of Federal Contract Compliance Programs (OFCCP) had record financial recoveries for fiscal year 2019. The Wage and Hour Division pulled in $322 million in wage and hour enforcement, which is $18 million more than the record set last fiscal year. And the OFCCP netted over $40 million in bias settlements — $16 million more than the previous record in fiscal year 2017. Epstein Becker Green’s Garen Dodge tells us why these record enforcements are likely to continue:

“I think that it tells us that really nothing has changed. The Department of Labor continues to be staffed by people who are serious in enforcing the laws. I think OFCCP and the Wage and Hour Division of the U.S. Department of Labor have all put together procedures to encourage early compliance with the laws, and to settle with those folks who have violated the law. If the OFCCP, for example, is in the middle of an investigation and the contractor realizes that it has made a mistake, the OFCCP does not continue to pound on them. They ask for an early resolution, the contractor settles up, and the agency moves on to the next one.”

2. OFCCP Releases CSAL Supplement

On November 8, the OFCCP released a Corporate Scheduling Announcement List Supplement, identifying 500 federal contractors for Vietnam Era Veterans Readjustment Assistance Act (VEVRAA) focused reviews. These audits will include a comprehensive review of the contractor’s policies and procedures to assess whether a business provides equal employment for protected veterans.

3. AI Technology Gains Traction for Employers

Artificial intelligence (AI) technology is gaining traction among employers as a tool for hiring and other HR functions. Where there is traction, regulation soon will follow, and the state of Illinois is taking the lead in that regard. Starting January 1, 2020, Illinois employers will face new restrictions on their use of AI to analyze applicant video interviews. Under the new law, the Artificial Intelligence Video Interview Act (AIVI), employers will have to notify applicants and obtain consent before using AI for video interviews, in addition to other restrictions.

“I believe that employers across the nation can expect more of this type of restrictive legislation as employers continue to use artificial intelligence for workplace purposes. The AIVI’s concepts of notice and consent aren’t really that new. Laws governing the use of workplace biometrics, such as Illinois’ Biometric Privacy Act, similarly require notice and consent. Compelling business reasons will likely lead to an increased number of employers looking to technology to assist in many phases of the employer/employee relationship. Laws and regulations governing the use of these technologies will likely follow.”

— Adam Forman, Member of the Firm, Epstein Becker Green

4. NJ Looks to Tighten Restrictions on Gig Workers

New Jersey is attempting to restrict the gig economy. The Garden State has made several aggressive moves to limit the use of independent contractors. Most recently, a bill has been introduced in the state Senate that would amend the state wage-hour and unemployment laws, and tighten the “ABC test” used to distinguish between employees and independent contractors.. We’ll keep you updated on any developments with this bill and other efforts from the state.

5. Tip of the Week

Barbara Harris, Senior Legal Editor of Labor & Employment for Thomson Reuters Practical Law, shares some tips for keeping confidential workplace information that is gathered using AI technologies:

“First of all, you want to take a look at your confidentiality agreements and make sure that the terms really cover everything you need to cover to properly protect these processes. One of the other interesting issues is really whether the underlying data can be protected. AI is a set of algorithms, it runs over a data set. Really, the answer to that is probably going to depend on where the data comes from, so if the AI is running over data that’s derived from your personnel files and your own Human Resources internal information, well, that information in and of itself is probably already going to be protected as confidential within your regular confidential, confidentiality agreements. So, if you’re dealing with a publicly available information source in the recruiting process, where you’re getting things from, whether it’s LinkedIn or Facebook and you’re getting this other publicly available data, you might not be able to protect that, but you can protect what’s done to it.”

Stay tuned for further developments that may affect your business.