Artificial Intelligence in Recruiting and Hiring

August 21, 2019 Leave a comment

By: Amanda Thibodeau

Tommorowland Today:  The Illinois Legislature Responds to the Rise of A.I. in the Employment Sphere

AET Headshot Photo 2019 (M1344539xB1386)Artificial Intelligence, or AI, is no longer just a sci-fi movie device.  This branch of computer science has grown to become an essential part of the technology industry.  You may recognize your own use of AI in products such as Apple’s Siri, Amazon Echo, or Netflix, which all use learning and predictive technology to get smarter and learn your likes, dislikes, interests, and behavior.

AI has recently stepped into the recruiting and hiring world, with new platforms available to employers to collect, store, and use data to screen a candidate’s facial expressions and gestures, analyze their voice, speech patterns, and knowledge on a particular subject, and evaluate a candidate’s personality and predict their fit for a role.  As with other AI technology, the more candidates the AI platform interviews, the smarter it gets in its analyses.

Illinois is the first state to respond to the rise of such use of these AI platforms.  In May 2019 Illinois passed the Artificial Intelligence Video Act (“the Act”), which goes into effect January 1, 2020.  Under the Act, an employer wishing to use an AI platform to analyze a candidate’s interview must comply with several requirements:

  • Employer must notify the candidate that their interview will be videotaped and may be analyzed using AI;
  • Employer must obtain consent to analyze the video using AI;
  • Employer must provide information to the candidate on how the AI platform works and what it uses to evaluate candidates.

The Act applies to all candidates applying for an Illinois-based position, regardless of where the candidate is actually located.  The Act also prohibits employers from sharing the candidate’s video, “except with persons whose expertise or technology is necessary in order to evaluate an applicant’s fitness for a position.”  The candidate may also request that the video be destroyed within 30 days of a request.  This request also requires any recipient of the video to also destroy the video, including any electronically generated backup copies.

The Act itself is fairly short and does not contain any definitions or much guidance on interpretation.  Illinois is the first state to respond legislatively to this new use of AI in the employment context, and is therefore charting the course for now.  As the use of AI continues to grow in all industries, it is likely that other states may be playing catch-up sooner rather than later, and will likely use Illinois’ new Act as a model.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

IEP Meetings Covered Under FMLA

August 15, 2019 Leave a comment

By: Amanda Thibodeau

DOL Issues New Opinion Letter On the Intersection of IEP Meetings and the FMLA

AET Headshot Photo 2019 (M1344539xB1386)

Most employers and their human resources specialists are acquainted with the protections afforded to employees under the Family and Medical Leave Act (FMLA).  Quite often employers interact with the FMLA when an employee needs time off of work to recover from an extended illness or other medical issue, or to care for an employee’s family member.  A trap for the unwary, however, presents itself in a new Opinion Letter issued by the Department of Labor on August 8, 2019.

The Opinion Letter (FMLA2019-2-A) responds to an anonymous request from the parents of a school-aged child inquiring whether the FMLA protects the parents’ ability to take time off of work to attend their children’s Individualized Education Program (IEP) meetings.  The DOL unequivocally reached the conclusion that parents’ attendance at such IEP meetings were covered by the protections of the FMLA.

In the facts presented to the DOL, the children had qualifying health conditions under the FMLA that were certified by the children’s doctors.  The children’s doctors had also provided documentation to the wife’s employer that the children required intermittent care that would require her to miss work on occasion.  The wife’s employer had previously granted the wife’s requests for leave under the FMLA to bring the children to medical appointments in accordance with these certifications; however, the employer refused to grant FMLA leave for the wife to attend the children’s IEP meetings with the school, which are held four times per year.

The DOL focused on several aspects of the FMLA including that the FMLA permitted leave “to care for” a family member with a serious health condition, including “to make arrangements for changes in care.” See 29 C.F.R. § 825.124(b).  In narrowing in on these clauses, the DOL also relied upon its previous opinion letter (FMLA94, 1998 WL 1147751 (Feb. 27, 1998)), which found an employee was entitled to take FMLA leave to attend “care conferences” related to her mother’s health conditions.  Similarly, the DOL found that wife’s attendance at the children’s IEP meetings was “clearly essential” to the children’s care and noted that the children’s doctors need not be present at these meetings to qualify for intermittent leave under the FMLA.

Employers or human resources specialists presented with similar situations should be mindful of this guidance when analyzing whether such leave requests qualify under the FMLA.  Proper training of managers is recommended, including on what types of school meetings are covered and which may not be, and what types of documentation the managers can request from the employee to support the leave request.

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

Amanda Thibodeau Speaking on MCLE Program on Employment Law Issues for Gig Workers

July 10, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)Employment attorney Amanda Thibodeau will be speaking on the MCLE program Employment Law Issues for Gig Workers, being held on Tuesday, July 30. The program will provide an overview of the current state of the law, how various governing bodies on the state and federal levels have grappled with companies and workers in the gig economy, and how each side can protect themselves and navigate changing employment laws in this arena. The agenda will include topics of discussion such as:

  • What is the “Gig Economy” and which employers and workers fall into this category
  • Overview of classifications of workers and legal consequences of misclassification
  • Reviewing recent state and federal guidance on classification issues
  • Reviewing states’ legislative responses governing gig employment
  • Understanding other common employment issues in the gig economy
  • Understanding how a gig business can mitigate its risks and what workers should do to protect themselves

For more information and to register, view the MCLE event page.

U.S. Supreme Court Rules EEOC Charge is Procedural Requirement, Not Jurisdictional

June 17, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

As we have discussed previously, Title VII of the Civil Rights Act of 1964 (“Title VII”), is a federal statute that prohibits discrimination in employment on the basis of race, color, religion, sex, or national origin. It also prohibits retaliation against individuals who assert rights under the statute. To assert a claim under Title VII, the statute outlines that as a precondition to filing suit in federal court, a person must file a formal charge with the Equal Employment Opportunity Commission (EEOC) within 180 or 300 days of the alleged violation. But what happens if an individual fails to file such a charge, or fails to list every alleged violation in that charge?

On June 3, 2019, the U.S. Supreme Court answered that question with its ruling in Fort Bend Cty. v. Davis. In Davis, the plaintiff filed an initial charge with the EEOC alleging retaliation for reporting sexual harassment to her employer. While the EEOC case was pending, Ms. Davis contends she was fired for refusing to work on Sundays based upon her religious commitments. Ms. Davis attempted to add to the initial EEOC charge by handwriting “religion” on an EEOC intake questionnaire, but her EEOC charge was never formally amended. She then went on to file her case in federal court, alleging discrimination based upon religion and retaliation.

Several years into the litigation, Fort Bend filed a motion to dismiss based upon Ms. Davis’ failure to file an EEOC charge alleging religious discrimination. Fort Bend alleged the federal court did not have jurisdiction over the claim because Ms. Davis failed to meet Title VII’s charge requirement. The district court granted that motion. The U.S. Court of Appeals for the Fifth Circuit reversed, holding that Fort Bend waived the issue by waiting too long to raise it with the court.

The U.S. Supreme Court then weighed in this week affirming the Fifth Circuit’s opinion, holding that Title VII’s charge requirement is procedural rather than jurisdictional. The Court said Title VII’s charge requirement “is a processing rule, albeit a mandatory one, not a jurisdictional prescription delineating the adjudicatory authority of courts.” In short, while Title VII requires an individual to file a charge with the EEOC, the filing itself is not necessarily the act that triggers jurisdiction over the claim, and thus failing to file the charge is not necessarily fatal.

The Court’s ruling does not mean that plaintiffs are free to ignore such claim-processing requirements, however. The Court was clear that the failure to follow such requirements may still be fatal to plaintiffs’ claims; however, defendants must be careful to raise the issue early on – preferably in the answer or an early motion to dismiss. Otherwise, the procedural defects are deemed waived.

For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.

Massachusetts Paid Family and Medical Leave Update: Governor Baker and Legislative Leaders Issue Joint Statement Delaying Employer Contributions

June 13, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

On June 11, 2019, Massachusetts government leaders announced their intent to amend the Massachusetts Paid Family and Medical Leave Act (the “PFMLA”) to delay the employer payroll tax contribution start date, required by the PFMLA, to October 1, 2019 (from the prior start date of July 1, 2019). In connection with the announcement, Governor Charlie Baker, Senate President Karen Spilka, and House Speaker Robert DeLeo issued the following joint statement:

“To ensure businesses have adequate time to implement the state’s Paid Family and Medical Leave program, the House, Senate, and Administration have agreed to adopt a three month delay to the start of required contributions to the program. We will also adopt technical changes to clarify program design. We look forward to the successful implementation of this program this fall.”

The announcement appears to be a response to concerns raised by industry groups related to compliance deadlines associated with the rollout of PFMLA. The changes to the PFMLA described in the announcement still require confirmation by both the House and Senate, and the scope of the other “technical changes” to the PFMLA anticipated in the announcement remains unclear.

Morse is monitoring developments concerning the PFMLA, and will provide further updates as appropriate. For additional information concerning the PFMLA, please see Morse’s prior alerts on the subject:

Massachusetts Paid Family and Medical Leave Update: Department Sets May 31, 2019 Deadline for Employers to Comply with Notice Requirements

Massachusetts Paid Family and Medical Leave Update: Department EXTENDS Deadlines for Employee Notice and Private Plan Compliance Obligations

For more information, please contact Matthew Mitchell or Amanda Thibodeau.

DOL Issues Opinion Letter Classifying Workers in the Gig Economy As Independent Contractors

June 6, 2019 Leave a comment

2015-01-05_8-57-41The U.S. Department of Labor (DOL) recently issued an Opinion Letter analyzing the classification of workers in the virtual marketplace or “gig economy.” This refers to companies that operate in the “on-demand” or “sharing” economy, using online and smartphone applications to connect consumers to service providers in a wide variety of services, such as transportation, cleaning, delivery, and shopping.

The DOL was asked to analyze the classification of such service providers under the Federal Labor Standards Act (FLSA), ultimately deciding that based upon the facts provided by the unidentified company in question, the service providers were independent contractors.

This is vitally important in that independent contractors are not afforded the same protections under the FLSA as employees. For example, employees are entitled to minimum wage, overtime pay, and other benefits under the FLSA, while independent contractors are not. Continue reading in our Employment Law Alert.

Title VII at SCOTUS

June 3, 2019 Leave a comment

AET Headshot Photo 2019 (M1344539xB1386)By: Amanda Thibodeau

In April 2019 the U.S. Supreme Court announced it would hear three cases related to discrimination based upon sexual orientation and gender identity during its next term. The Court will analyze the scope of Title VII of the Civil Rights Act of 1964 (“Title VII”), which prohibits discrimination on the basis of a protected class. Currently, the lower courts are split on whether the term “sex” in the statute includes sexual orientation and/or gender identity. Both the Second and Seventh Circuit Courts as well as the Equal Employment Opportunity Commission (EEOC) all interpret Title VII as covering sexual orientation, while the Eleventh Circuit disagrees.

In two of the cases, Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, the Court will consider whether Title VII’s prohibition on sex discrimination protects individuals from discrimination on the basis of sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, on the other hand, the Court will consider whether discrimination on the basis of gender identity is prohibited under Title VII.

The Zarda case involves a skydiving instructor who was fired after he disclosed to a customer that he was gay. Mr. Zarda subsequently died in a 2014 skydiving accident, and his estate has been pursuing the case on his behalf. The U.S. Court of Appeals for the Second Circuit interpreted Title VII to include sexual orientation under its protections. Mr. Zarda’s former employer then appealed that decision to the U.S. Supreme Court.  Noteworthy is that the EEOC and the Department of Justice (DOJ) both submitted briefs in the Second Circuit which were inapposite of each other: the EEOC arguing that Title VII protects discrimination based upon sexual orientation, while the DOJ argued it does not.

In the Bostock case, a child welfare services coordinator claimed he was fired for being gay. The Eleventh Circuit ruled against him, citing a 1979 5th Circuit case that held homosexuality is not prohibited by Title VII.

The third case, Harris, involves a transgender woman, Aimee Stephens, who was fired after informing her employer, a funeral home, that she was a transgender woman and would start wearing women’s clothing to work. Her former employer defended itself in the case by claiming that it believed gender transition violated “God’s commands.” The federal district court initially ruled that Ms. Stephens was discriminated against, but that the employer was protected by the Religious Freedom Restoration Act. The Sixth Circuit then reversed the district court, holding that not only is transgender discrimination prohibited under Title VII, but also that the employer was not protected by the Religious Freedom Restoration Act. The funeral home appealed.

Some states, like Massachusetts, already provide their own individual protections based upon sexual orientation and/or gender identity, but many states do not. The Supreme Court’s determinations in these cases, therefore, have the potential to change the landscape of employment discrimination law nationwide, and will be closely watched.  Advocacy groups, such as the American Civil Liberties Union (who is co-counsel in two out of three cases), are particularly concerned about the potential impact of the Court’s decisions. Decisions in these cases are expected by June 2020.

Morse will watch these cases closely and will provide updates as new information becomes available.

For more information on Title VII or other discrimination issues, please contact Matthew Mitchell or Amanda Thibodeau.