Tri-State Employers Archives - Page 2 of 4

18

July, 2022

EEOC Removes Employers’ Blanket Authorization to Test Employees for COVID-19

Responding to the evolution of the COVID-19 pandemic, the Equal Employment Opportunity Commission (EEOC) has concluded that we are past the emergency stage when it was always considered appropriate for employers to require screening tests of employees for COVID-19. Updated guidance provides that, going forward, employers will need to treat COVID-19 testing like other medical examinations, under the standards of the Americans with Disabilities Act (ADA). Most significantly, this requires that any mandated test be “job-related and consistent with business necessity.”

When COVID Testing Is a “Business Necessity”

The EEOC explained that “business necessity” is met in various circumstances:

To comply with government requirements or guidance – If guidance from the Centers for Disease Control and Prevention, the Food and Drug Administration, or state or local public health authorities recommends COVID-19 testing, then employers’ compliance with those guidelines will be considered a “business necessity.”
Based on likelihood of infection and transmission – This requires employers to weigh the relevance and impact of a range of factors, including: the level of community transmission, the vaccination status of employees, the accuracy and speed of processing various types of COVID tests, the degree of breakthrough infections among employees who are current on their vaccinations, the ease of transmissibility of the current variant, the possible severity of illness from the current variant, the types of contacts employees may have with others in the course of their work, and the potential impact on operations if an infected employee enters the workplace. The EEOC’s guidance does not elaborate on the weight to be accorded to any specific factor, or how many factors need to be present to reach the level of “business necessity,” but it does advise employers to check the latest CDC guidance to determine whether screening testing is appropriate based on the listed factors.
If an individual is exhibiting symptoms in the workplace – On an individualized basis, an employer may require further screening or COVID-19 testing if the employee at work is exhibiting symptoms or an employer otherwise has a reasonable belief based on objective evidence that the individual has COVID-19, and testing would be consistent with recommendations by the CDC or other public health authorities.

The EEOC’s guidance permits employers to require COVID-19 viral screening when one of the above circumstances apply. However, the guidance is emphatic that employers cannot require employees to submit an antibody test (as distinguished from a viral screening test) before reentering the workplace.

Screening Questions Are Still Permitted

Under the updated guidance, other types of less-intrusive screening for COVID-19 remains permissible. Employers can ask employees who are physically entering the workplace if they have COVID-19 or associated symptoms, and whether they have been tested for COVID-19. Employers also can ask employees who work on-site and report feeling ill or who call in sick questions about their symptoms to the extent those symptoms relate to screening for COVID-19.

Those who respond that they are infected or exhibiting symptoms may still be excluded from the workplace, but employers cannot entirely prohibit them from working if remote work is feasible. Similarly, employees who refuse to respond to the employer’s screening questions may be excluded from the workplace.

Screening and Evaluating Job Applicants

Employers may additionally screen job applicants for symptoms of COVID-19 after making a conditional job offer, provided that screening is similarly administered to all employees in the same type of job who are entering the workplace. At the pre-offer stage, screening of job applicants before they come in for an interview is only permissible if the employer screens all individuals, including visitors and contractors, before permitting entry to the worksite.

Given the relatively short period of time required for isolation or quarantine for those who test positive for COVID-19, the EEOC’s updated guidance limits the circumstances in which an employer can withdraw a job offer for an applicant who has tested positive for COVID-19. The employer must be able to show that the job requires an immediate start date, the CDC guidance recommends the person not be in proximity to others, and the job requires that the individual be in proximity to others (it cannot be done remotely).

By Tracey I. Levy

11

July, 2022

Maximize Your Talent Pool: 3 Ways to Ensure Your AI Is Not Screening Out Qualified Job Candidates with Disabilities

My son has been applying for hourly, entry-level summer jobs. Through his process, I am seeing first-hand, from the applicant’s perspective, the varying ways in which software, algorithms and artificial intelligence now predominate the job application process at this level. When I was his age, I walked into different establishments, asked to speak with a manager, completed a paper application and then moved on, hoping to be called for a phone or in-person interview. Now, from his experience:

Walk-in applicants are directed to a website, either that of the business itself or of a third-party vendor, to find postings for open positions;
All applications are submitted electronically, through on-line portals;
Initial screenings may be conducted by a series of questions texted to the applicant, and a wrong answer can shut the process down with a polite but firm response that the organization will not be proceeding further with the application at this time;
A next-level screening may be a video “interview,” which comprises the applicant self-recording, on the applicant’s phone with video enabled, responses to scripted questions posed by the organization and then submitting the video through a portal for review – perhaps by a human, but more likely first run through software that screens for certain substantive responses and stylistic behaviors; and
Scheduling of actual, in-person interviews may proceed through text or email, and the delayed responder may lose the interview opportunity, but the quick responder may, eventually, meet with an actual human being, in-person or via videoconference.

My son is very tech-savvy and was non-plussed by the AI aspects of his experience. I, on the other hand, thought of the challenges my friends and I all have had, to varying degrees, trying to assist older family members use some of the same technologies deployed in my son’s job application process. And I wondered, how would any of them be able to apply for an entry-level job under the current processes? So too, the EEOC says, with regard to individuals with disabilities.

In recently-issued Guidance, the EEOC considers these myriad ways in which automated processes and artificial intelligence can reject individuals with disabilities who would be qualified to do the job if provided a reasonable accommodation. The EEOC recommends that employers account for this in various ways. They include:

Notice – provide clear notice and instructions for applicants to request a reasonable accommodation in the context of the application process;
Relevance – assess algorithmic decision-making tools to confirm they measure only necessary skills and do not screen out individuals with certain disabilities; and
Disclosure of Process – disclose in advance information about which traits are being measured by an algorithmic tool, how they are being measured, and which disabilities might potentially score less favorably.

Artificial intelligence, we need to remember, is only as good as the information that was first used to program it. The biases of the program designers and developers can influence the types of questions posed, or the way information is presented or analyzed, and thereby result in outcomes that disproportionately impact individuals possessing certain protected characteristics. While some software vendors test for these disparate impact outcomes and will certify their products as having been tested to be “bias-free,” the EEOC cautions that those “bias-free” certifications pertain to Title VII-protected characteristics: race, sex, national origin, religion, and color. Disabilities are unique to each individual, as is the requirement to provide reasonable accommodations for individuals with disabilities who are otherwise able to perform the essential functions of a job, and automated tools may thereby impact differently-abled individuals, even if they have the same diagnosed condition.

The EEOC encourages employers to develop and select tools that only measure abilities or qualifications that are truly necessary for the job. While particularly resonant in the context of accommodating individuals with disabilities, the EEOC’s recommended approach will equally help employers to avoid inadvertently screening out individuals based on other protected characteristics.

Central to the EEOC’s guidance is encouraging employers to equip individuals with disabilities with sufficient information about the employer’s job application process so they know when they may need a reasonable accommodation to succeed in that process. Particularly in the currently tight labor market, where employers are casting ever-wider nets to attract job applicants, a reassessment of screening tools can help to ensure that readily-available candidates are not rejected prematurely for reasons unrelated to their actual ability to perform the job.

By Tracey I. Levy

27

April, 2022

Maine as National Example Disappoints Employers with Newest Law on Paid Time Off

By Tracey I. Levy

A plethora of paid leave laws currently plague multi-jurisdiction employers and they seem to multiply with each passing year. The concept of paid sick leave, which originated in San Francisco in 2007, has spread to 16 states and at least 25 localities across the country.

Sick Leave Isn’t Just for Being Sick, And Other Complications

“Sick” leave as defined by many of these laws is a far cry from typical employer policies in that usage often extends beyond an employee’s own illness and injury to include:

routine well visits for medical care;
care of an employee’s family member (in the broadest sense);
“safe” time for victims of domestic violence, sexual assault or similar crimes; and
coverage when a school, childcare center or place of employment is closed due to a public health emergency.

Particularly challenging for employers are the differences between the laws, in terms of leave time granted, permitted uses, accruals, carryover and requisite notice. So while the laws consistently state that an employer can maintain its own sick leave policy provided it meets all the elements of the legally-mandated sick leave, the varying requirements collectively make it nearly impossible to have one fully-compliant one-size-fits-all policy.

Maine Approached It Differently

Enter Maine with its paid personal leave law. It was refreshing in its simplicity. Rather than adding an ever more expansive list of reasons why employees could use paid leave, the Maine law says the reason is irrelevant. If you have more than 10 employees, full-time, part-time or otherwise, then you must provide them with up to 40 hours of paid leave, per year, for any purpose, provided they give reasonable notice. While there surely are employers of that size who do not already provide 5 days of paid time off per year, a great many provide that much or more. For those with existing paid time off policies, tailoring those policies to comply with the new Maine law should be relatively easy.

The only element of the law that deviates from typical employer practice (but aligns with most of the paid sick leave laws), is that employees need to be able to carryover up to 40 hours of accrued, unused paid leave from one calendar year to the next. When not subject to legal mandates, private sector employers typically restrict carryover of paid time off to a fixed number of days and require that the carryover days be used within a duration of three to six months into the new year. Employers may incur a cost when carryover is mandated, in that accrued days may need to be reflected as a pending liability in their business records. Employers are therefore disinclined to allow too much in the way of carryover. While the Maine carryover mandate may require employers to modify their vacation or other paid time off policies, overall the law is simpler than the approach taken in other states and localities.

And Then Maine Complicated Things

But now, things have changed a bit. Maine’s governor just signed a new law, which takes effect January 1, 2023, that amends the state’s wage statute to require employers to pay out employees for accrued, unused vacation upon termination. Other states, like Massachusetts, Rhode Island and Illinois, have similar legal requirements, which thereby discourage employers from granting vacation time in a lump sum at the outset of the year, and deny employees the flexibility that comes with front-loaded vacation time.

Lesson for Legislators

Adopting ever more prescriptive paid time off laws sows confusion and impedes uniformity in approach for multi-jurisdiction employers. As Maine demonstrated with its 2021 paid personal leave law, states can achieve the overarching goal of granting employees the assurance of paid days off to manage their personal lives, while minimizing the strictures that impede employers’ ability to draft consistent policies and manage their workforce.

30

January, 2022

Persistent Pay Inequity Drives Legal Mandates for Employers to Publicly Post Wages Being Offered

By Tracey I. Levy and Alexandra Lapes

Five or six years ago, in speaking with a start-up client about social media policies and wage transparency, the client explained they made available to all on their intranet a spreadsheet with salary information for the company’s entire management team. While that practice remains extraordinary even in 2022, a new report from The Conference Board and Emsi Burning Glass highlights a growing trend toward greater wage transparency. Among the key findings from Emsi Burning Glass’s analysis of job openings reportedly posted on nearly 40,000 separate sources, including job portals and employers’ career sites, was that:

more than 12 percent of all such postings in fall 2021 included salary data; and
nearly 16 percent of all noncollege occupations in fall 2021 included salary data.

That is about a 65 percent increase in wage transparency in just 2 ½ years – since April 2019.

The Conference Board/Emsi Burning Glass report attributes much of the increase to the current competitive labor market, where wage transparency is just one of numerous proactive steps that organizations are taking to attract applicants. State and local legislatures – notably including New York City and Connecticut – will be further fueling that trend, as new laws take effect that require wage range disclosures in the hiring process.

Pre-Existing Landscape of Wage Transparency Laws

The earliest of these laws date back to California in 2018. The California version, as well as those passed in the subsequent two years in Washington, Maryland, and Toledo and Cincinnati, Ohio, require an employer to disclose the wage range for a position upon the applicant’s request. Colorado took transparency to a new level in 2021, and it requires private employers to affirmatively state the wage rate or range with any job posting for a position to be performed in Colorado or remotely from another location. Connecticut and New York City have taken Colorado’s lead, with new wage transparency laws passed just in the last seven months.

Disclosing Wage Range for Connecticut Job Postings

Effective as of October 1, 2021, Connecticut employers must provide job applicants with the wage range for the position to which the applicant is applying, even if the applicant does not inquire. The law states that this information must be disclosed either when requested or, if no request is made, then no later than the time a job offer is made. Connecticut further requires employers to provide this type of wage range information to current employees:

who change positions with the employer; or
at an employee’s first request.

The “wage range” to be disclosed is defined as the range of wages an employer anticipates relying on when setting wages for a position, and may include reference to:

any applicable pay scale;
a previously determined range of wages for the position;
the actual range of wages for those employees currently holding comparable positions; or
the employer’s budgeted amount for the position.

Notably, recent guidance issued by the Connecticut Labor Department clarified that the law extends to anyone who applies for a job with a Connecticut employer, even if the employee is working remotely from another state.

NYC Requires Similar Disclosure, with Less Guidance

Beginning May 14, 2022, New York City employers with at least four employees (inclusive of contractors and employed family members), may not post job listings without stating the minimum and maximum salary for the position. Failing to include this wage range information is deemed an unlawful discriminatory practice, and the requirement extends beyond job advertisements to posted promotion and transfer opportunities. The law states only that the wage range may include the lowest to the highest salary the employer believes in good faith at the time of the posting it would pay for the advertised job, promotion or transfer opportunity. We anticipate that, closer to the effective date, the city will provide additional guidance regarding the appropriate measure of the wage range.

A Growing Trend

Nevada and Rhode Island have similarly passed wage transparency laws in the past year. Both states have staked a middle ground on when such information must be disclosed, but each prioritizes a different group. Nevada requires that wage range information be automatically provided to each job applicant who is interviewed, but only given to employees if they request the information in the context of a promotion or transfer. Rhode Island requires that wage range information be given to job applicants if they request it and prior to discussing compensation, but requires that employees automatically be provided the wage range at time of hire, when the employee moves into a new position, and whenever the employee requests it.

Similar legislation is currently making its way through the committee review process in New York State. As currently drafted it would mandate disclosure of the wage range both for the internal or external posting of each job opportunity, and upon an employee’s request. A bill pending in Massachusetts would take the more modest approach of requiring disclosure only upon the applicant’s or employee’s request. While we are not currently aware of any similar bills pending in New Jersey, the state has taken strong legislative action in the past several years to mandate pay equity, and we anticipate that a wage transparency bill may be forthcoming.

Reconciling Theory and Reality

The desire to counter pay inequity, which persists particularly for women, people of color, and those at the intersectionality of those two characteristics, drives this legislative mandate of wage range transparency, as stated in the preamble to many of these new laws. The theory is that equipping workers with greater information will enable them to better negotiate their pay.

A recent article in Money magazine calls that theory into question, citing the experience of Buffer, a tech start-up. Not unlike our client from five years ago (which was not Buffer), Buffer had gained some notoriety for publishing a public spreadsheet, beginning back in 2013, that included the salaries for its entire workforce. According to the article, the company later began analyzing its pay practices and found a gender pay gap of 15 percent in 2019. This is just slightly better than the 18 percent pay gap reported by the Bureau of Labor Statistics both in 2019 and 2020. The article continues by noting that it was only through additional, affirmative measures taken by the company that Buffer said it was able to reduce the pay gap to 5.5 percent in 2021 – pay transparency alone, even over multiple years, had not made a difference.

Where that Leaves Employers in the Tri-State Area

Currently, employers in Connecticut have an existing obligation under the recent wage transparency law to update their job posting practices and include wage range information. New York City employers must prepare for the May 14, 2022 effective date of the city’s pay transparency requirement. Employers in the rest of New York State and in New Jersey should anticipate that they likely are just a few years away from having to meet similar requirements.

Moving beyond mere legal compliance, employers that are committed to pay equity should take a fresh look at their pay practices. In the past, being a better negotiator or coming in with a higher base from a prior job were accepted explanations for differences in compensation among otherwise equally qualified employees with different protected characteristics. The impetus behind the newest pay transparency laws suggests that there is less legislative acceptance of that explanation. Consistent with the Emsi Burning Glass report, in this time of the “great resignation” and a ready flight of talent seeking better opportunities, employers may want to consider a different analysis and approach to their pay practices.

25

October, 2021

Table of Vaccine Mandates and Latest Legal Updates: Takeaways Fall 2021

Our Fall 2021 issue of Takeaways covers the state of COVID-19 workplace requirements and guidelines (this time focusing on vaccinations), new age discrimination protections in New Jersey and Connecticut, changes in wage and hour requirements, the newest New York City guidance on background checks, and the Biden administration’s gradual roll back of determinations from the past four years to maximize employee protections.