Helping HR Departments Minimize Risk When Using AI Tools in Hiring
Human resources (HR) departments are progressively turning to artificial intelligence (AI) tools to assist in the process of recruiting and vetting job applicants. AI vendors claim that their tools can quickly and seamlessly identify the best candidates for open positions. Despite such claims, these tools have the potential to perpetuate stereotypes, disparately impact certain populations, and present troublesome issues relating to people with disabilities—leaving employers vulnerable to class or collective actions.
Epstein Becker Green understands both the promise and pitfalls of AI, and our attorneys have experience counseling clients on how to maximize the benefits of AI in recruitment and selection while minimizing potential risks. Recently, two clients—a major financial institution and a restaurant chain—sought Epstein Becker Green’s help in evaluating AI vendors for their employee recruitment, selection, and onboarding functions. Our attorneys assisted our clients in assessing the product offerings, reviewing vendor contracts, identifying the appropriate questions to ask the vendors about their AI products, monitoring and testing those products, and evaluating whether those products would raise red flags from a legal perspective.
Protecting Companies That Use Chatbots for Certain HR Functions
Increasingly, companies are using “chatbots” for lower-level human resources (HR) functions, such as tracking employees’ paid time off, leave, or benefits. (A “chatbot” is a computer program that uses artificial intelligence (AI) to simulate conversation with human users—for example, a chatbot may appear in a pop-up window on a website that asks whether a visitor needs any assistance.) Some companies are even evaluating whether they should complement humans with chatbots to take in internal complaints of discrimination or harassment. Although management and HR personnel may embrace chatbots to increase efficiency and reduce subjectivity, there are legal risks involved with adopting this technology.
Epstein Becker Green provides advice and counsel to clients that use, or are considering using, chatbots and want to mitigate their legal risks. We recently assisted clients in the retail and financial services industries with their chatbots. Our attorneys evaluated the questions asked by these chatbots to ensure that the algorithms, among other things, are able to distinguish between various types of employee requests—such as requests for sick leave, Family and Medical Leave Act leave, a regular day off, or an accommodation under the Americans with Disabilities Act. In addition, we made sure that our clients' chatbots have built-in processes to elevate certain matters for human review and are creating a favorable experience for employee-users.
Defending an Employer Wrongfully Accused of Discrimination
Any accusations of discrimination against an employer are distressing, especially when they are false. Epstein Becker Green has substantial experience defending employers against claims of discrimination.
For example, in July 2018, we successfully defended a California employer wrongfully accused by the plaintiff, a former mailroom employee, of disability discrimination. The plaintiff was given two medical leaves following the amputation of several toes due to a diabetic condition. After his return to work, however, the plaintiff filed a claim with the Equal Employment Opportunity Commission (EEOC), asserting that our client failed to accommodate his work restrictions. The plaintiff was eventually terminated, and he claimed that the firing was due to his disability and/or in retaliation for filing the EEOC charge. The plaintiff sought an arbitration award in excess of $2 million.
Epstein Becker Green argued that our client’s decision to terminate the plaintiff was not motivated by discrimination or by the filing of the EEOC charge but by the plaintiff’s poor work performance and his inability to perform the essential functions of his job, which required substantial standing, walking, and lifting—all of which were prohibited by the restrictions set out by his doctor. Our client proved that it was unable to provide any job that could have accommodated those restrictions. In addition, numerous complaints made by coworkers about the plaintiff—including one that was received after the filing of the EEOC charge but before the plaintiff was terminated—highlighted the plaintiff’s unprofessional conduct and his inability to interact appropriately with his coworkers.
The arbitrator agreed with Epstein Becker Green’s arguments, and our client obtained a complete defense verdict.
Protecting an Association’s Vacation Policy
Disputes frequently arise over whether an employee is entitled to be paid for accrued, but unused, vacation time at the end of his or her employment. Epstein Becker Green has experience protecting clients against and in such situations.
For example, we successfully represented a professional association in a trial involving an appeal from a decision by a wage collection referee denying the complainant’s claim for non-payment of unused vacation time at separation. The complainant presented a novel interpretation of the association’s vacation policy with respect to the payment of accrued, but unused, vacation at separation, which, if adopted, would have had a significant financial impact on the association beyond the complainant’s claim, as the relevant state’s statute of limitations on contract claims is six years. The association would have been exposed to multiple lawsuits and state administrative proceedings of an indeterminate value for unpaid vacation at the time of separation. In December 2016, the court held a trial de novo and took testimony from witnesses on the complainant’s appeal. After we presented our case, the court issued its ruling denying the complainant’s appeal and affirming the referee’s decision. The complainant did not appeal the decision to an appellate court.
Learn more about our Wage and Hour service team.
Epstein Becker Green Obtains Defense Verdict in Pregnancy Discrimination and Retaliation Jury Trial in San Francisco
This case was brought by a former employee of one of Epstein Becker Green's clients, On Lok, inc., which is a nonprofit organization that serves the Bay Area's elderly population ("Organization"). The plaintiff filed a lawsuit after her employment was terminated when she was seven months pregnant and shortly before her anticipated maternity leave was expected to begin. She claimed pregnancy discrimination and retaliation in response to her request for leaves of absence under the California Family Rights Act and the California Pregnancy Disability Leave Law, among other related causes of action.
The Epstein Becker Green defense team, including Steven Blackburn, successfully demonstrated that the termination decision was not motivated by the plaintiff's pregnancy or request for leave, but instead by the plaintiff's misconduct related to an incident that was reported to and thoroughly investigated by the Organization's management shortly before the termination decision. The court allowed the Epstein Becker Green defense team to introduce favorable historical data regarding the Organization's treatment of employees who requested pregnancy-related leaves of absence during the 10 years preceding the plaintiff's termination. Additionally, at the defense team's request, the court allowed a special jury instruction regarding the "business judgment rule," which stated that the jury's role was not to second-guess the Organization's business decision, but it should instead determine whether the plaintiff's pregnancy or request for leave was a motivating reason for the termination decision.
Within a few hours of commencing deliberations, the jury returned a verdict in favor of the Organization. During post-trial interviews, the jurors indicated that the business judgment rule was critical to their decision.
Matthew Goodin also assisted the Epstein Becker Green defense team in preparing for the trial.
Epstein Becker Green Wins Dismissal of Leave and Wage Claims Against Senior Living Center
On July 31, 2012, Epstein Becker Green, on behalf of a senior living center, succeeded in obtaining a dismissal of a claim of retaliation under the District of Columbia Family and Medical Leave Act ("DCFMLA") and summary judgment on a claim under the D.C. Wage Payment Collection Law ("DCWPCL") brought in the District of Columbia Superior Court by the plaintiff, a former employee of the center. See Tisdale v. 1330 OPCO LLC, d/b/a Residences at Thomas Circle, No. 2011 CA 009761 B (D.C. Superior Court, July 31, 2012).
In an 18-page decision, Judge Natalia M. Combs Greene made several significant findings:
- On a matter of first impression under the DCFMLA, the Court held that an employee who has not yet met the minimum eligibility requirements for DCFMLA leave has no rights under the statute. Accordingly, the plaintiff, who requested DCFMLA leave that would have begun before she met the minimum eligibility requirements, did not engage in protected activity and could not state a claim for retaliation under the DCFMLA. The Court adopted the analysis of this question under the similar provisions of the federal FMLA by the U.S. Court of Appeals for the Sixth and Eleventh Circuits.
- The Court also found that the plaintiff could not state a claim for equitable estoppel because, even if the senior living center failed to provide timely notice that she was ineligible pursuant to D.C. regulations, she had conceded that she was ineligible and did not allege that she took any action in reliance on the center's silence.
- Finally, on another matter of first impression, the Court held that a handbook provision stating that involuntarily terminated employees were not entitled to be paid for unused accrued paid time off ("PTO") hours, to which the plaintiff was deemed to have agreed, did not violate a provision of the DCWPCL that prohibits modification of its provisions by private agreement. In so doing, the Court held that as an employer is not required to offer paid leave, it is free to set limitations on payment for such leave. Such a limitation does not violate the DCWPCL's provisions governing when wages are due but merely establishes what wages will be due on termination.
The Epstein Becker Green attorneys representing the senior living center included Frank C. Morris, Jr., and Brian Steinbach of the Washington, D.C., office.
Epstein Becker Green Advises Physician Group on Affiliation with Pediatric Medical Center
Epstein Becker Green (EBG) represented Children’s & Women’s Physicians of Westchester, LLP (“CWPW”), a group of 276 physicians across 57 locations serving families throughout the New York metropolitan area, the Hudson Valley, Connecticut, and New Jersey, in a transaction that made CWPW the newest member of Boston Children’s Hospital integrated network. CWPW will continue providing care to its patients and families. In addition, CWPW’s physicians will remain on the faculty of New York Medical College, continue to staff 10 area neonatal intensive care units, and maintain their current affiliations across the region.
Since April 2014, EBG attorneys have been advising CWPW on the corporate transactional, health regulatory, tax, employment law, and employee benefits aspects of the transaction.
The EBG team included Jeffrey H. Becker, Wendy G. Marcari, and Benjamin M. Zegarelli, as well as Steven A. Ruskin and Christopher M. Locke. Also providing invaluable advice were James P. Flynn, Patricia M. Wagner, Gretchen Harders, Susan Gross Sholinsky, Jeffrey M. Landes, David E. Weiss, Emily E. Bajcsi, Arthur J. Fried, Katherine R. Lofft, Carrie Valiant, and Jason E. Christ.