26

January, 2023

Reconsider Job Requirements to Diversify Your Talent Pool

Following established techniques and methodologies can achieve efficiencies, assure consistency and produce positive outcomes.  But sometimes we need to challenge our historic approach, analyze the rationale behind certain standards and methodologies, determine whether those rationales are still viable, and make changes as appropriate.  Organizations facing a talent shortage and those looking to diversify the workplace may now be at such an inflection point.

Diversity Starts with Hiring Decisions

Hiring processes and decisions are the cornerstone of any initiative to diversify a workforce.  President Lyndon Johnson recognized this nearly 60 years ago when he issued Executive Order 11246, which continues to prohibit federal government contractors from discriminating in employment decisions based on certain protected characteristics and requires them to take affirmative action in their hiring and promotion decisions, to ensure the provision of equal employment opportunities.  Hiring also has been the focus of more recent government initiatives to achieve equal employment opportunity, as exemplified by the launch one year ago of a “Hiring Initiative to Reimagine Equity (HIRE)” by the Equal Employment Opportunity Commission (EEOC) in partnership with the Office of Federal Contract Compliance Programs (OFCCP) as part of its Equity Action Plan to advance racial equity and support for underserved communities.  If you do not bring a diverse group in the door, then there can be no diversity in any other aspect of the organization’s workforce.

Conventional Wisdom and Hiring Criteria

Educational background, training certifications and past employment history have long been our primary selection criteria when reviewing job candidates.  We often use these factors as a proxy for competence or even of superior ability, presuming that:

  • college-level education equates to higher intellect than those with a high school diploma;
  • a degree from a selective college or university indicates an even higher level of intelligence and accomplishment;
  • courses of study and advanced degrees from universities reflect specialized knowledge, intellectual rigor and commitment;
  • training certificates prove interest in a particular specialty;
  • gaps in employment are red flags of poor past work performance or personal issues that encroach on commitment to the work; and
  • prior industry experience offers better training than work in other fields.

Each of these are stereotypes – categorical assumptions, based on preconceived notions.  Stereotyping is a technique that we use to filter and organize the universe of data we may encounter.  In the abstract stereotyping is neither good nor bad, but there are exceptions to every stereotype, and some may be flat out wrong or predicated on inappropriate, discriminatory assumptions.  Relying too heavily on stereotypes in our hiring criteria and processes can lead us to overlook desirable candidates.

Ask “What If”

Sometimes particular degrees, training or experience is critical to performing a particular job.  Mere interest in law or medicine, for example, or having taken some courses in those subjects, will not qualify an individual to receive certification from professional licensing boards that are necessary to practice in those fields.

Often, though, there is opportunity to explore other considerations.

  • What if a candidate for a sales position did not attend or complete college because that candidate needed to transition more immediately into the workplace to help support the candidate’s family? If the candidate has proven work history, should the lack of a degree be an exclusionary factor?  And even if the candidate does not have proven work history, if it is an entry-level job why is a college degree required?  Is there any other way in which the candidate can demonstrate ability and potential?
  • What if a candidate’s family is legacy at a prestigious academic institution and the candidate was accepted largely on the coattails of past relatives’ achievements? Is that candidate more qualified than someone who bootstrapped their way through a state university and graduated in the middle or upper range of the class?
  • What if a candidate had to step out of the workforce due to a serious health condition that a prior employer could not or would not accommodate, and which has now been fully resolved? Does a prior health issue mean the candidate can never be a productive, hardworking contributor to the workplace?
  • What if the candidate chose to leave the workplace for a period of time due to caregiving responsibilities? Are there any skills or values that, while perhaps uncompensated, the candidate might have gained during that period that would be relevant to the position for which the candidate has applied?
  • What if a candidate was fired along with most of the division in a major restructuring, and the termination coincided with a serious economic downturn? Or a former employer relocated its operations across the country and the candidate had family obligations that precluded moving with the former employer?  Are either of those circumstances a negative reflection on the candidate’s skills and experience?

Many hiring managers might reconsider their preconceived assumptions in those circumstances, but if screening criteria are set too rigidly they can filter out candidates at the application stage, before they would ever have the opportunity to meet with a hiring manager.

Diversity Implications of Rigid Screening Criteria

Testimony provided at the EEOC’s HIRE roundtables reflect the implications for a diverse workforce when baseline hiring criteria are too rigid.  Among those screened out of the workforce based on a period of unemployment, for example, are:

  • workers who were pregnant or had caregiving responsibilities at some point;
  • disproportionately people of color; and
  • older workers who may have been impacted by past layoffs.

Similarly, degree requirements or preferences based on academic institutions attended can disproportionately screen out people of color and certain socioeconomic groups.

Recognizing those outcomes, the EEOC and OFCCP are actively promoting skills-based hiring and encouraging employers to consider alternative credentials for job candidates.  Last year, the state of Maryland announced that it would eliminate a four-year college degree as a job requirement for thousands of state jobs, and consider workers skilled through alternative routes, including apprenticeships and certification programs.  In making the announcement, the state reported that nearly half of the workers in Maryland are skilled through these alternative measures.

Maintaining High Standards

Reconsidering historic job criteria means applying different measures of skills and credentials and recognizing certain benchmark indicators of high achievement are not necessarily a proxy for identifying superior talent.  It does not mean an employer has to lower its standards.

I graduated from a regional law school, and subsequently completed an advanced law degree at an ivy league school.  The institutions I attended trained me on the law from different perspectives, each of which I found to be incredibly valuable.  I was no greater a scholar after graduating with my ivy league LLM than I was five years earlier when I earned my law degree.  Yet even now, 23 years after earning that second degree and notwithstanding many years working in various capacities, people will call out the ivy league degree on my bio as the hallmark measure of my accomplishment.  I am grateful for any doors that degree helps open, but I spent enough years having to prove myself without the stellar credential to attest that talent comes in all forms and from a variety of places.  As talent pools dwindle, broadening the net to reconsider hiring criteria opens the door to more candidates and opens the potential to develop a more diverse workforce.

By Tracey I. Levy

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17

January, 2023

Workplace Investigations: What Is “Bullying”?

There is a slippery slope between what may be considered sub-optimal or bad management practices, “bullying,” and “harassment.”  When behaviors prompt an employee complaint, workplace investigators need to evaluate where a supervisor’s conduct falls on the spectrum.  That analysis largely turns on an assessment of the target and nature of the behaviors, centered on the organization’s workplace policies.

Distinguishing Bullying from Harassment

As a workplace trainer, I regularly advise that the only distinction between bullying and harassment is that harassment is based on a protected characteristic, while bullying is not.  Actions like physical contact, threatening or insulting comments or gestures, and exclusion or isolation may prompt complaints of bullying, and they are equally likely to result in complaints of harassment.  The behaviors are the same, but the target differs.

An investigator presented with those types of reported behaviors first needs to determine whether they actually occurred.  If it seems more likely than not that they did occur, then the issue becomes one of determining whether an individual has been singled out for that treatment based on a protected characteristic, or whether the respondent engaged in those behaviors based on personal dislike of the complainant or indiscriminately toward a range of individuals with differing characteristics.  In other words, is this individual a so-called “equal opportunity jerk?”  That determination is not as simple as it may seem.

Considering the Target

Non-sexual behaviors, such as yelling at an employee, throwing papers at her and reassigning her to a different work group may be considered sexual harassment if they are targeting an employee because she is a woman.  The investigator needs to consider why the behaviors occurred, whether others have experienced similar behaviors from the respondent, and whether those others possess the same or different characteristics from the complainant.

Even if an investigator finds that a supervisor yells and makes demeaning comments to individuals across the gender spectrum, however, that may not be determinative on the question of whether the conduct is harassment or bullying.  Recently, for example, I met with a complainant who conceded that a manager was harsh and very critical of both the men and women on the team but asserted that the level of hostility was more pronounced toward women, and that only the women were belittled in a public setting.  As an investigator, therefore, it was not only the perpetuation of hostile behaviors targeting individuals across the gender spectrum, but also the severity of those behaviors as directed at different groups, that I needed to consider.

Anti-Bullying Policy Language Can Obviate the Distinction

Organizations can avoid this level of hair-splitting by adopting broader policies related to appropriate workplace conduct.  Policies that require employees to treat each other with respect and dignity or to maintain a respectful work environment, as well as those that prohibit both harassment and bullying, capture these types of offensive behaviors regardless of who is being targeted or for what reason.  Under such policies, the investigator can just focus on the behaviors themselves and, if they are found to occur, the organization has grounds to take responsive disciplinary and remedial action.  Whether the behaviors also give rise to a legal claim of harassment then becomes a question for litigators to resolve, and only if the matter proceeds to litigation.

Narrowly-defined policies can place organizations in a defensive posture.  Organizations that identify and resolve issues in a manner that sufficiently satisfies the complainant may be able to avoid subsequent legal action.  Organizations that decline to act unless offensive behaviors are found to be based on a protected characteristic are more likely to have a dissatisfied complainant who will pursue legal remedies to address the behaviors.

Bullying or Bad Management?

Investigators may also need to analyze behaviors at the other end of the spectrum, to determine whether a supervisor has engaged in poor management, or whether the supervisor’s approach crosses the line into bullying behavior.  In this context, the starting point needs to be the organization’s policies, and how they define bullying behavior.  Some organizations have detailed policies that provide a definition of bullying with specific examples, and those provisions should guide an investigator’s determination as to whether behaviors violate the policy.

Many organizations have less explicit policies against bullying, or none at all.  The challenge in those situations is that not every harsh or critical communication by a manager qualifies as “bullying.”  The nature of the behavior, whether it is targeted, and the reason for the behavior are often critical to determining whether a supervisor has crossed the line between appropriate feedback or discipline for an employee’s violation of workplace conduct standards, and inappropriate behavior.

Receiving critical feedback usually does not make an employee feel good and may cause discomfort or upset.  Some managers also deliver that type of message more delicately than others.  In general, we consider critical feedback to be appropriate manager behavior and not bullying because it is motivated by legitimate business considerations.

At times, though, even if critical feedback is warranted, the manner in which it is delivered may be inappropriate.  The distinction is reflected in existing legal definitions of “abusive conduct,” which require a certain degree of malevolence or hostility before workplace behaviors will be considered to be bullying.  Tennessee, currently the only state that legally prohibits abusive conduct by private employers, defines it as “acts or omissions that would cause a reasonable person, based on the severity, nature, and frequency of the conduct, to believe that an employee was subject to an abusive work environment.”  California, which requires harassment prevention training to expressly address bullying prevention, defines abusive conduct as that engaged in “with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests.”  Both states provide examples that include:

  • repeated verbal abuse such as derogatory remarks, insults and epithets;
  • threatening, intimidating, or humiliating verbal or physical conduct; or
  • gratuitously undermining or sabotaging a person’s work performance.

While employers can always define bullying under their own policies more broadly than the state laws, when the policies lack a clear definition, these laws provide a helpful framework for investigators delineating between bullying and bad management.

Policies as Guideposts

As with the distinction between harassment and bullying, organizations that adopt broad policies related to workplace conduct can make clear to employees and supervisors – in advance – how the organization defines the boundaries of permissible workplace behavior.  Policies that address bullying with a definition and examples of the types of behaviors considered to be inappropriate provide helpful guideposts as to the organization’s expectations and the norms for appropriate conduct.  Those guideposts can also inform workplace investigators’ determinations of when behaviors have crossed the line between bad management and bullying.  Without guideposts, it’s a slippery slope.

By Tracey I. Levy

 

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25

November, 2022

Sometimes We All Need a Little Help – and a Cooperative Dialogue with our Employer to Get Us There

I have been thinking a lot about managing physical and mental impairments recently. Not the permanent ones, but the ones that may come on suddenly and impede what we consider to be our “normal” functioning ability. The subject is on my mind for two reasons. First, because in the past few years we have heard of so many more instances of workers facing mental health or substance abuse issues, or newly diagnosed as adults with conditions like ADHD for which they are being prescribed medications or other treatment. Second, because I have been facing down my own physical and mental health issue – a chronic medical condition that at its most severe can produce hours-long, paralyzing vertigo attacks and hearing loss.

In my case, prior to the pandemic I thought I had my condition largely under control through a combination of diet and medication. Then I took the weight of the world on my shoulders as we heard the progressively more bleak stories of the impact of COVID-19, my vertigo attacks returned, and they became more frequent, less predictable and more debilitating. I lost 50 percent of my hearing in one ear, and the status quo clearly was not sustainable. I took the rare step of opting for surgery five weeks ago, a minor surgery with great odds of stopping the vertigo attacks (and thereby stemming the hearing loss).

I had anticipated a weekend for my recovery from surgery, and allowed a cushion of two additional days when I was scheduled to be out for religious observance. I had a roster of ongoing matters and deliverables, but no worries about working through all of them immediately following the holiday.  I didn’t even set an out-of-office message, figuring I could return any necessary calls or emails as soon as the anesthesia wore off.

The surgery went as planned. The recovery did not.  My weekend was spent sedated in the hospital, trying to make the world stop spinning. I rested at home over the holiday and then tried to resume my work in short intervals, from my recovery bed. My colleagues covered for me on some matters, and some I pushed off or worked through at less than my regular pace. I built in downtime between my meetings so I could just rest, give my eyes a break, and regain my strength for my next meeting or project. I had a running list of all my deliverables and gradually made my way through completing them.

By week four, the list had been reduced to just a few ongoing matters. But while I had seen gradual, albeit painfully slow, improvement in my first three weeks, I began to backslide. I was stretching out six hours of productive work over a 10 to 12 hour daily window, and by 8 pm, a milder version of the old vertigo was returning, leaving me helpless to do anything for 45 minute intervals and so exhausted thereafter that I had to call it quits for the night. By the weekend, the vertigo was back with a major roar, sudden, fierce and completely debilitating attacks that had me violently ill and confined to my bed. Clearly something had to change.

This past Monday, I confronted my own situation. I called out the areas in which I was not delivering at my expected level – the blog articles I had not even brought myself to start writing, the training materials I had only half-developed, the investigation I’d had to decline taking on for a new client and the one that was in danger of stalling – and I took some sage advice from a respected teacher. I put myself on medical leave (you can do that when you own the business). I emailed clients to request to push out some deadlines, I set out-of-office messages on my phone and email, I went for a walk outside, and then I went to bed. I saw my doctor the next day, who has put me on a new medication that is so far keeping the vertigo away. I am continuing to walk outside each day, I am accepting the care of my family and friends, and until now I had almost entirely retired my laptop and work emails.

And it is working. I feel slowed by the medication, but freed of the oppressive weight of the vertigo I was perpetually fighting off. I am not entirely steady on my feet, but my walks on flat terrain help to clear my head. And ideas and inspiration to write, the lifeblood of my professional existence, are flowing once again.

Perhaps this is too much disclosure of personal information. Perhaps I have spent just a few too many hours listening to Moth hour story podcasts on National Public Radio this past month when the vertigo left me unable to absorb any form of visual engagement. But I share all this because, while I hope my particular ordeal is unique, I am afraid that the themes of wanting to continue to deliver at work, not wanting to admit the scope of the problem, not wanting to accept too much help, and not giving in to “defeat” are more universal and more prevalent in our workplaces than we may recognize.

For those of you in circumstances like mine, I see you and I empathize. But I also want to educate because going it alone is not your only option. If you are suffering from a serious medical condition, it may qualify as a “disability” under federal law and even more likely so under the law in states like New York, Connecticut, New Jersey and others. What that means is that you are entitled to help to enable you to perform the essential functions of your job. In New York City they call it a “cooperative dialogue” process and I like the friendliness of that phrasing.

You will likely be asked for documentation from your health care provider, but most employers I work with genuinely want to help and support you. Certainly the work needs to get done, but particularly if yours is just a short-term debilitating condition, and particularly if you are part of a larger organization, it may be possible to temporarily shift certain projects or responsibilities to colleagues who can help cover. Sometimes deadlines are more aspirational than essential, and they can be shifted for compelling circumstances. And sometimes the best thing you can do for yourself and everyone around you is to just step away for a little bit, take a leave of absence and allow your body and mind the time and space to heal.

Marvel characters aside, none of us are superheroes. All of us, at some point, face circumstances usually not of our choosing that interfere with the career trajectory, performance standards and aspirations that we set for ourselves. If you are like me, the hardest step in that situation is recognizing our own limitations – to ourselves, and to those we work with. But health issues do not typically resolve themselves just by pretending they do not exist, and the caliber of work we can deliver under trying circumstances often does not meet our own lofty standards.  Make the call, and if you need it, ask for the help.

By Tracey I. Levy

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24

October, 2022

Mandated Pay Transparency – the Public Posting of Salaries Being Offered – Is Imminent in NYC and CA

At the onset of the pandemic, when businesses were being shut down, new government edicts were materializing by the hour and it felt like the world had turned on its head, I heard from a great many clients, each trying in their own way to sort through the confusion. There was a level of chaos then that I hope never again to experience at quite that level in my professional career.

But I have advised and managed through other inflection points – times at which a jurisdiction (most typically NYC, thank you to my home stomping grounds) has rolled out a substantial change in employment laws that, while covered in advance by lots of law firms and journalists, still caught many employers by surprise. The advent of paid sick leave did that – with rules and guidance issued by the city literally at the eleventh hour before the effective date and employers that already had some form of paid sick leave benefit scratching their heads to discern how what they offered met (or more often did not meet) all that the new law required. And years before that it was the laws prohibiting smoking in the workplace – something that has now become a fairly standard workplace norm was radically shocking when it rolled out, with exceptions for private enclosed office spaces, signage mandates and a plethora of legislative compromises.

We are again at one of those inflection points, and this time the target is employer’s hiring practices. Next week New York City employers will face round one of the change, as November 1 brings with it a mandate that every job posting for a position that could be filled in the city (including by a remote worker) must specify the wage or job range for the position. That mandate takes effect in Westchester County on November 6 and for the entire state of California on January 1.

January 1 also will bring round two to New York City – a requirement that the myriad tools employers may now be deploying for their hiring practices undergo anti-bias testing and that those results, plus a plethora of other information, be made public on employers’ websites and through various notice requirements to job applicants. These requirements will cover the most basic of AI tools, like those that perform key word searches to help filter through (and reject) stacks of job applicants, to far more sophisticated systems that rate candidates’ suitability relative to designated hiring criteria or even conduct and analyze video interviews of prospective applicants.

One client recently commented that this is the full job security for recruiters law, and at least in the short-term it may be. New York City seems to place far greater faith in the unbiased (or at least more modestly scaled) feedback of recruiters and hiring managers than it does in technology that can be programmed to whittle applicant pools down to the choicest of candidates in the blink of an eye.

I have been writing and speaking of these legal changes for months and want to call out some of the resources you can reference for additional information.

  • For background on the basic elements of the pay transparency laws, see page 1 of Takeaways from Summer 2022. For similar background on the AI law, see page 5 of Takeaways from Winter 2021/22. And for the Westchester County piece of this, see my most recent posting on the WHRMA blog.
  • More in-depth articles that we have posted on each of these subjects for the Levy Employment Law blog include: NYC pay transparency law, NYC pay transparency guidance, AI tools, and pending NYS pay transparency legislation.
  • For some of the collateral consequences employers should be anticipating from pay transparency, see my Forbes interview with award-winning executive coach and author Dr. Ruth Gotian, and my more recent interview for the Employment Law column of SHRM, the Society for Human Resource Management.
  • For the broader context of how pay transparency aligns with the 50-year history of pay equity initiatives in the U.S., our firm delivered a continuing legal education program with the Federal Bar Association and MyLawCLE that can be accessed here.

And there are more articles to come, as we help our clients work through the practical applications and implications of these laws. I have been thinking through a range of options employers may wish to consider for their own organizations that get ahead of the pay transparency issue. Yes, a pay equity audit is a good start – as so many legal practitioners have been advising – because the first step in solving a problem is knowing whether one exists. But options and opportunities go well beyond that initial step.

Also, there is the nagging question of whether any of this new legislation actually is addressing the right problem. There is reason to believe it is not, but also options (albeit challenging ones) for how to truly get to the thorny underlying issues. Keep checking with me as we explore those ideas, and please consult employment counsel if you have any questions about how the new hiring laws apply to your organization.

By Tracey I. Levy

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7

October, 2022

NYC Employers May Want to Rethink the Value Cost Proposition of Their AI Hiring Tools

All employers in New York City that rely on artificial intelligence (AI) in their hiring processes are potentially subject to new requirements, beginning January 1, 2023, that they ensure their AI tool has undergone a “bias audit” within the past year, provide advance notice to job applicants regarding the use of the tool, and publicly post on the employer’s website a summary of the results of the most recent bias audit and distribution data for the tool.  The law imposes hefty civil penalties on employers that fail to comply.

For months, employers have viewed this new requirement (the first of its kind in the country) with both puzzlement and foreboding, awaiting further guidance from the city as to what exactly it means by a bias audit and who should be providing the requisite certification.  The New York City Department of Consumer and Worker Protection has issued proposed rules to address those questions, with a public hearing scheduled for 11 am on Monday, October 24, 2022.

The proposed rules are notable in:

  • their definition of when an AI tool (which they refer to as an “automated employment decision tool” or “AEDT”) is subject to the new law;
  • their definition of who needs to conduct the bias audit;
  • what data needs to be analyzed and what information must be posted on employers’ websites; and
  • requirements related to how the data should be posted and additional notices to be provided.

When is the use of an AI tool subject to audit

The proposed rules narrow the scope of covered technology through their definition of an AEDT.  The law states that a bias audit is required whenever an AI tool is used “to substantially assist or replace discretionary decision making.”  The Department of Consumer and Worker Protection is proposing that the standard of substantial assistance or replacement applies in three situations:

  • when the employer relies solely on a simplified output (score, tag, classification, ranking, etc.), with no other factors considered;
  • when an employer uses such a simplified output as one of a set of criteria and weights that output more than any other criterion in the set; or
  • when an employer uses a simplified output to overrule or modify conclusions derived from other factors including human decision-making.

In other words, if the employer is relying on the AI tool to do the heavy lift on screening applicants at any stage of the hiring process, then it will likely need to comply with the bias audit requirement.  If, on the other hand, the AI tool is used more casually, as but one factor for consideration in screening candidates or perhaps to help flag those who may be the best match to the job description, and it carries no more weight than other criteria, then it would apparently fall outside the audit requirement.

Notably, for employers that are dabbling with AI and still relying mostly on human decision-making, as the employer’s AI tool gets “smarter” so to speak and better understands the types of factors it should be looking for when screening applicants, employers that may initially have been exempt from complying with the bias audit requirement will need to revisit that analysis.  Once the tool becomes a relied-upon and predominant factor at any stage of the screening process, the proposed rules indicate that the bias audit requirement will apply.

Who should be conducting the bias audit

The proposed rules state that an “independent auditor” should conduct the bias audit, meaning someone that is not involved in using or developing the AI tool.  This means that even if the employer did not develop the tool, as the user it cannot rely on its own in-house staff to audit the results of the tool for possible bias.  And if the tool is provided by a vendor, then the proposed rules seem to contemplate that the vendor will retain an independent third-party to conduct the audit.

What data needs to be analyzed

The third-party conducting a bias audit is being tasked with calculating two sets of numbers:

  • the “selection rate” – calculated by dividing (1) the number of individuals in a particular gender, racial or ethnic category who were selected to advance to the next level in the hiring process or were assigned to a particular classification by the AI tool by (2) the total number of individuals in that gender, racial or ethnic category who had applied or were considered for the position; and
  • the “impact ratio” – for which the calculation depends on whether the AI tool is being used to select and eliminate people, or whether it is being used to score and categorize them. If the tool handles selections, then the impact ratio is calculated as (1) the selection rate for a specific category divided by (2) the selection rate for the most selected category.  If rating or scoring candidates, then the impact ratio is calculated as (1) the average score of all individuals in a category divided by (2) the average score for the most selected category.

This is fairly standard statistical analysis for claims of adverse impact in employment practices, which is meant to flag employment practices that appear neutral but have a discriminatory effect on a protected group.  The EEOC and other government agencies typically apply a four-fifths rule or 80 percent guideline, whereby an impact ratio of less than 80 percent raises a red flag that there is an adverse impact.  Notably, though, the proposed rules require only that employers post the selection rate/average score and the impact ratio.  Nothing in the law or the proposed rules requires employers to educate job applicants on what the scores mean.

How the data should be posted

Employers are required to make available on their websites:

  • the date of the most recent bias audit;
  • a summary of the results, including selection rates and impact ratios for all categories; and
  • the date the employer began using the AI tool.

The proposed rules require that this posting be clear and conspicuous on the careers or jobs section of the employer’s website, but they allow employers to meet that requirement with an active and clearly-identified hyperlink to the data.

Additional notice requirements

Employers are also required, under the law, to provide candidates with at least 10 business days’ notice that they will be using an AI tool, the job qualifications and characteristics that the tool will assess, and allow candidates to request an alternative selection process or accommodation.  The proposed rules state that this notice can be posted on the employer’s website, included in the job posting, or individually distributed to job candidates.

Finally, employers must additionally provide employees with notice as to the type of data collected by the AI tool, the source of that data, and the employer’s data retention policy.  The proposed rules provide that employers either need to post the information on their website, or post notice to candidates on their websites that the information is available upon written request (and then comply with those requests within 30 days).

Next steps for employers

Employers that would like to comment on the proposed rules can use the contact information in the rules to call or Zoom in.  With the January effective date rapidly approaching, employers should review what AI tools they currently use in their hiring processes and how they are used.  If the tools are provided through a vendor, then the employer should consult with the vendor on whether it has conducted a bias audit and what information it can share as to the results of the audit.  If the employer has developed its own AI tools, it should look for an independent third-party that can perform the requisite selection and impact analysis.  Employers should also plan to make space on their websites for posting the results of their audit and the various notices required under the law.

Flummoxed employers are encouraged to seek legal advice on complying with the new law.  Employers may also want to revisit their hiring processes and determine whether the efficiencies gained through the tools exceed the administrative burdens of the New York City law.  That analysis will differ across industries and organizations.

By Tracey I. Levy

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