The Proskauer Brief: Hot Topics in Labor & Employment Law

In this episode of The Proskauer Brief partner Guy Brenner, who leads Proskauer’s D.C. Labor & Employment practice and is head of the Government Contractor Compliance Group, and Jonathan Slowik, senior counsel, Labor & Employment, in the firm’s Los Angeles office, discuss laws requiring employers who use artificial intelligence (AI) to conduct bias audits and impact assessments to root out potential algorithmic discrimination.  Guy and Jonathan discuss two high profile laws applicable to employers in New York City and Colorado, what employers need to do to ensure compliance, and the possible proliferation of bias audit requirements in other jurisdictions.

In the final installment of our AI at Work series, partner Guy Brenner and senior counsel Jonathan Slowik tackle a critical issue: mismatches between how artificial intelligence (or AI) tools are designed and how they are actually used in practice. Many AI developers emphasize their rigorous efforts to eliminate bias, reassuring employers that their tools are fair and objective, but a system designed to be bias-free can still produce biased outcomes if used improperly. Tune in as we explore real-world examples of these risks and what employers can do to ensure they are leveraging AI responsibly.

In part three of our series on potential pitfalls in the use of artificial intelligence (or AI) when it comes to employment decisions, partner Guy Brenner and senior counsel Jonathan Slowik dive into the concept of "black box" systems—AI tools whose internal decision-making processes are not transparent.  The internal workings of such systems may not be well understood, even by the developers who create them. We explore the challenges this poses for employers seeking to ensure that their use of AI in employment decisions does not inadvertently introduce bias into the process.  Be sure to tune in for a closer look at the complexities of this conundrum and what it means for employers.

In part two of our insightful artificial intelligence series, partner Guy Brenner, who leads Proskauer’s D.C. Labor & Employment practice and is co-head of the Counseling, Training & Pay Equity Group, and Jonathan Slowik, senior counsel, Labor & Employment, in the firm’s Los Angeles office, explore the critical issue of AI training data in employment decisions. We discuss how issues with training data can create risk with respect to employment discrimination laws, even when AI systems are not explicitly programmed to consider protected characteristics. We also highlight the potential for inaccuracies in AI models due to insufficient or unrepresentative training data. So be sure to tune in as the legal implications of these issues can be of importance to employers when understanding potential biases in AI systems. 

In this episode of The Proskauer Brief we are joined by partner Guy Brenner, who leads Proskauer’s D.C. Labor & Employment practice and is co-head of the Counseling, Training & Pay Equity Group, and Jonathan Slowik, senior counsel, Labor & Employment, in the firm’s Los Angeles office. In part one of our insightful artificial intelligence series, we explore what employers need to know about using AI when it comes to employment decisions, such as hiring and promotions. Tune in as we break down key considerations and best practices for navigating the evolving landscape of AI in the workplace and provide essential tips that can enhance your approach to talent management.

In this episode of The Proskauer Brief we are joined by Daryl Leon, one of the leads of Proskauer’s Restrictive Covenants, Trade Secrets and Unfair Competition Group and Edna Guerrasio, senior counsel in the Labor & Employment Law Department.  Along with partner Steve Pearlman, Daryl and Edna recently published an article in Legal Drive that discusses methods and strategies employers can use to bulk up their protections for trade secrets and human capital in a world where non-competes are becoming less and less viable. Tune in as they build on the topics covered in that article and discuss in greater depth what options are available to employers.

In this episode of The Proskauer Brief, senior counsels Jurate Schwartz, Joshua Fox, and special employment law counsel Laura Fant discuss the new standard on personnel policies and workplace rules set forth by the National Labor Relations Board (NLRB) in its August 1, 2023 decision in Stericycle, Inc., 372 NLRB No. 113 (2023). Be sure to tune in as we discuss why employers should take this opportunity to review their existing handbooks and policies with counsel in light of the new standard.

In this episode of The Proskauer Brief, partners Evandro Gigante, Allan Bloom and special employment law counsel Laura Fant discuss the New York City Council's recently proposed amendments to the city's pay transparency law. Presently, an employer is only required to include the “base annual or hourly wage or rate of pay” and not other forms of compensation or benefits offered. The proposed amendment would expand these obligations to: (1) require that jobs, promotions and transfer opportunities include “a description of the job, promotion or transfer opportunity and the non-salary or non-wage compensation for such position” in the posting; and (2) that employers disclose to current employees – on an annual basis as well as upon an employee’s request – the “range of compensation” for that employee’s job title, including bonuses, benefits, stocks, bonds, options and equity or ownership.

In this episode of The Proskauer Brief, partners Evandro Gigante, Allan Bloom and special employment law counsel Laura Fant discuss the New York City Pay Transparency Law, which is set to come into effect on November 1, 2022. The law covers employers with four or more employees and generally requires covered employers who post a job, promotion, or transfer opportunity for a position that can or will be performed, at least in part, in New York City to disclose the minimum and maximum annual salary or hourly wage that the employer in good faith believes it would pay for the position. Tune in as we discuss the new law in order to prepare employers for its upcoming implementation. 

In this episode of The Proskauer Brief, partner Evandro Gigante and associate Laura Fant discuss a recent New York City law requiring employers to state salary ranges in job postings. Effective May 15, 2022, as an amendment to the New York City Human Rights law, it shall now be an unlawful discriminatory practice for an employer or their agent to advertise a job including promotions or transfer opportunities without stating the minimum and maximum salary for the position in the job advertisement. Employers should tune in to see what they will really need to consider when implementing this law.

In this episode of The Proskauer Brief we are joined by partner Guy Brenner, who heads up Proskauer’s D.C. Employment Law practice and co-chairs our Non‑Compete and Trade Secrets Practice group and Daryl Leon, an associate in Proskauer’s New York office and senior member of the Firm’s Non‑Compete and Trade Secrets Practice Group. Employers should listen in as we discuss key developments and trends we've been seeing across the country in non-compete law.   

In this episode of The Proskauer Brief, partners Evandro Gigante and Steve Hurd discuss key developments regarding the COVID-19 pandemic, including employer vaccination policies, the forthcoming OSHA emergency temporary standard and the New York State HERO Act. So be sure to tune in as we explore the latest trends we are seeing in terms of employer-imposed vaccine mandates.

In this episode of The Proskauer Brief we are joined by partner Guy Brenner, who heads up Proskauer’s D.C. Employment Law practice and co-chairs our Non‑Compete and Trade Secrets Practice group and Daryl Leon, an associate in Proskauer’s New York office and senior member of the Firm’s Non‑Compete and Trade Secrets Practice Group.  Tune in as we discuss “The Ban on Non-Compete Agreements Amendment Act of 2020,” a law that is set to take effect in our nation’s capital in 2022. The law essentially bans all employers from entering into any agreements that bar their employees who work in D.C. from working for other employers or operating their own businesses.  

In this episode of The Proskauer Brief, partners Harris Mufson, Evandro Gigante, and Allan Bloom discuss key potential employment law changes under the Biden Administration.  Tune in as we explore an evolving legal landscape – from new health and safety requirements to wage and hour regulations and expanded anti-discrimination laws. 

In this episode of The Proskauer Brief, partners Harris Mufson and Evandro Gigante discuss the U.S. Equal Employment Opportunity Commission’s recent guidance for employers regarding mandatory COVID-19 vaccinations. On December 16th, 2020, the EEOC issued updated guidance for employers in light of the FDA's recent authorization of Pfizer's COVID-19 vaccine for emergency use. Widespread vaccinations have been largely perceived as critical in returning all employees to the workplace in a safe manner and allowing employers to resume normal business operations. Tune in as we discuss what many employers should consider regarding requiring employees to be vaccinated before returning to the office.

In this episode of The Proskauer Brief, partners Harris Mufson and Guy Brenner discuss the Trump administration’s recent Executive Order on Combating Race and Sex Stereotyping, which restricts the concepts that government contractors can include in their employee diversity and awareness training programs.  It also imposes certain penalties and sanctions, including debarment for failure to comply. Tune in as we discuss key considerations for government contractors in the wake of the order.

In this episode of The Proskauer Brief, partner Harris Mufson and associate Phil Lebel discuss recent legal developments in California, specifically a new supplemental paid sick leave law and coronavirus (COVID-19) exposure notification requirements. Tune in as we discuss steps employers can take to ensure compliance with these new requirements.

In this episode of The Proskauer Brief, partners Harris Mufson and Allan Bloom discuss the U.S. Department of Labor’s proposed new rule on independent contractor classification.  In recent years, the misclassification of workers as independent contractors has been the subject of a number of private lawsuits and investigations by government agencies.  This is true for traditional industries and also companies within the gig economy, which rely heavily on independent contractors.  So be sure to tune in as we address how this proposed rule may impact employers’ classification of workers.

In this episode of The Proskauer Brief, partners Harris Mufson, Seth Safra, Mike Lebowich and Guy Brenner discuss recent developments associated with the coronavirus (COVID-19) pandemic. Tune in as we address the latest legislative developments and issues employers should be thinking about when confronting the ramifications of this virus in the workplace.

In this episode of The Proskauer Brief, partners Harris Mufson and Guy Brenner discuss the coronavirus and what employers should be thinking about regarding that virus in the workplace. While the Occupational Safety and Health Administration has stated that most American workers are not at significant risk of infection at this time, it’s never too early for employers to consider how they can address employees’ concerns and help prevent an outbreak and address one if it occurs.  Tune in as we discuss practical tips and advice for employers who are thinking about being proactive in terms of confronting the potential issues associated with the coronavirus.

In this episode of The Proskauer Brief, partners Harris Mufson and Evandro Gigante discuss considerations and best practices associated with reductions in force.  Companies that make a business decision to reduce its staffing should consider what goals they are looking to achieve. Is it cost reduction or a consolidation of positions?  Or is it to weed out lower performing employees?  These considerations will tend to inform whether the employer decides to do a voluntary reduction in force or involuntary reduction in force.  Tune as we discuss practical tips for employers considering a RIF.

In this episode of The Proskauer Brief, partners Tony Oncidi and Kate Gold discuss California's most recent legislative response to the #MeToo movement.  These developments include new restrictions on confidentiality and arbitration as well as the extension of the statute of limitations applicable to harassment, discrimination and retaliation claims.  So be sure to tune in as Tony and Kate highlight the most important new laws facing California employers in the Age of #MeToo.

In this episode of The Proskauer Brief, partners Harris Mufson and Evandro Gigante discuss recent updates in state laws regarding voting leaves and political activities by employees. Currently twenty-two states have laws on the books that require some form of paid voting leave for employees.  With Election Day right around the corner, New York recently changed their law so that an employee is entitled to as much time off as needed that’s going to enable that employee to vote in an election, up to which three of those hours have to be paid.  Given the wide range of laws governing employee voting and political activities, employers should review their policies to insure that they are compliant with applicable state law. 

In this episode of The Proskauer Brief, New York partner Howard Robbins and London partner Dan Ornstein discuss how U.K. laws affect U.S. employers. As if dealing with U.S. employment laws are not difficult enough, international businesses also have to face several challenges of local requirements.  Tune in as we discuss many U.K. laws on discrimination, harassment, and retaliation, and their similarities to U.S. counterparts. In addition we will highlight what impact Brexit may have on U.K. employment law, including changes in relation to the protections of part-time or agency workers, and workers in the gig economy.  

In this episode of The Proskauer Brief, partner Evandro Gigante and associate Arielle Kobetz discuss the recent developments out of New York State, that will significantly expand workplace anti-discrimination protections.  Among other things, recent amendments to New York law will lower the burden on plaintiffs seeking to prove claims of workplace harassment under the Human Rights law.  Employers should tune in to see what impact the new law may have on the scope of harassment claims and what changes to policies or practices should be implemented.

In this episode of The Proskauer Brief, partner Evandro Gigante and associate Laura Fant discuss the recent New York law prohibiting discrimination on the basis of certain hairstyles.  This law expands the definition of race under the New York State Human Rights Law to now expressly include “traits historically associated with race,” which include but are not limited to hair texture and protective hairstyles.  Employers should tune in to see what impact the new law may have on the scope of race discrimination claims and what changes to polices or practices should be implemented when thinking about this new law.

In this episode of the Proskauer Brief, partners Steven Hurd and Patrick Lamparello discuss recent trends in reductions in force (RIFs) in financial services and some of the main reasons employers are engaging in them. These include automation of jobs or other technological developments, cost reductions, investor preferences, employee redistributions, and even Brexit has been a reason for downsizing.  So be sure to tune in as we discuss best practices an employer can engage in to carry out a RIF as well as practical alternatives an employer can consider to a reduction in force.

In this episode of The Proskauer Brief, partners Harris Mufson and Evandro Gigante discuss recently passed legislation by the New York City Council, which would prohibit some employers in NYC from requiring job applicants to submit to drug tests for marijuana use.  Specifically, the bill would amend the City’s Fair Chance Act to make it an unlawful discriminatory practice for an employer, including an employment agency or their agents, to require that a prospective employee or an applicant submit to drug testing regarding the presence of marijuana as a condition of employment.  That bill, if signed by Mayor de Blasio, would take effect within one year after it becomes law.

In this episode of The Proskauer Brief, partner Harris Mufson and associate Arielle Kobetz discuss the New York City Commission on Human Rights (NYCCHR) enforcement guidance on appearance and grooming policies that ban or restrict naturally curly hair, dreadlocks, braids, cornrows and other hairstyles. While the guidance, which was issued on February 19, 2019, specifically details protections for Black people – who, according to the NYCCHR, are frequent targets of race discrimination based on hair – it also cites as unlawful “any grooming or appearance policies that generally target communities of color, religious minorities, or other communities,” which are protected under applicable law. So be sure to tune in as employers in New York City should review their current grooming and/or appearance policies to ensure compliance with these new guidelines.

In this episode of The Proskauer Brief, partner Evandro Gigante and associate Arielle Kobetz discuss the labor and employment landscape in 2019, including some significant laws set to go into effect this year, as well as other legislative developments. They will highlight cases pending before the Supreme Court and what we can expect from the National Labor Relations Board (NLRB). Be sure to tune in for this 2019 preview. Update: On February 25, 2019, after the recording of this episode, the U.S. Supreme Court vacated the Ninth Circuit’s decision in Yovino v. Rizo due to the death of Judge Stephen Reinhardt, stating that the appeals court should not have counted the vote of the ruling’s author because he died before the decision was issued.

In this episode of the "Can My Employees Do That?" series, partner Elise Bloom and associate Michelle Gyves discuss whether employers can lawfully limit an employee’s participation in political activities, protests, and similar activities. We also discuss whether an employer can restrict an employee’s association with groups or publications on social media or elsewhere which espouse ideologies that are at odds with the employer's values. Lastly, we will cover to what extent an employer can limit political speech at work. So be sure to tune in for this very insightful episode. 

In this episode of The Proskauer Brief, partners Harris Mufson and Guy Brenner discuss the Office of Federal Contract Compliance Programs (OFCCP). Harris and Guy highlight OFCCP’s recent activities and discuss what government contractors should expect in 2019, so be sure to tune in.

In this episode of The Proskauer Brief, partners Harris Mufson and Howard Robbins continue their “Can My Employees Do That?” series. In this installment, Harris and Howard discuss the legal requirements regarding service animals in the workplace and provide practical advice for employers to address requests by employees to bring service animals to work. Please tune in to hear their insight regarding this challenging employment issue.

In this episode of The Proskauer Brief, partner Steven Hurd and partner Adam Lupion discuss developments from some of the key cases in labor and employment law in 2018. We will discuss notable cases from the United States Supreme Court and the lower courts, as well as legislative and regulatory developments that affect the workplace. Be sure to tune in for this 2018 recap of some highlights in Labor and Employment Law.

In this episode of The Proskauer Brief, partners Harris Mufson and Howard Robbins conduct the first part in a series of podcasts entitled, “Can My Employees Do That?” In this installment, Harris and Howard discuss workplace recordings and monitoring workplace emails. Please tune in to hear timely insight regarding these key employment issues. 

In this episode of The Proskauer Brief, partner Harris Mufson and senior associate Danielle Moss offer tips to help employers be proactive and avoid liability at their holiday parties. While the holidays are supposed to be the happiest time of year, many employers experience anxiety around their holiday parties. From high-level tips to state law specific training suggestions, Harris and Danielle discuss some of the ways employers can throw safe and liability-free holiday parties. So listen in and unwrap this early holiday present to allay your concerns about this important and timely topic.

In this episode of The Proskauer Brief, partner Harris Mufson and partner Allan Bloom discuss recent developments in federal overtime rules. The Trump administration recently released its fall 2018 regulatory agenda, with lots of information relating to the Department of Labor (DOL). The DOL appears to be committed to a more business-friendly regulatory framework which limits the burdens that regulations place on employers. Be sure to tune in to learn about proposed new overtime rules and their impact on employers and their employees.

In this episode of The Proskauer Brief, partner Evandro Gigante and associate Laura Fant discuss recent amendments to New York State law prohibiting sexual harassment.  The law will require employers to distribute policies prohibiting sexual harassment in the work place and implement annual training on sexual harassment.  These policies, which much be distributed by October 9, 2018, are required to satisfy certain minimum standards set by the new guidance.  In addition to the policy requirement, all employees in New York State must receive anti-harassment training on an annual basis.  Be sure to tune in and find out how employers can fulfill their obligations under this new law.

In this episode of The Proskauer Brief, partner Harris Mufson and associate Samantha Regenbogen discuss significant reforms to Massachusetts law that will apply to non-competition agreements as well as adopting the Uniform Trade Secrets Act (UTSA). The law will cover non-compete agreements entered into with Massachusetts residents and Massachusetts employees on or after October 1, 2018 (but not retroactively), including independent contractors. With less than two months until the law goes into effect, employers should promptly consult with counsel to discuss the impact of the new legislation and to prepare compliant language and forms for future non-compete agreements.

In this episode of The Proskauer Brief, partner Harris Mufson and associate Laura Fant discuss the New York City Temporary Schedule Change Law that recently went to effect. This law requires employers to grant employee requests for temporary schedule changes for certain medical and family care purposes, which can include caring for a minor child or for another family or household member who requires care due to a disability or medical condition, attending certain government proceedings for benefits and also for other reasons under the New York City Earned Sick and Safe Time Act.

In this episode of the Proskauer Brief, partner Harris Mufson is joined by associates Rebecca Sivitz and Maryssa Mataras to discuss the recently enacted Pay Equity Laws in Massachusetts and New Jersey. So be sure to tune in for the latest insight on this very important issue. 

In this episode of The Proskauer Brief, partners Tony Oncidi and Harris Mufson discuss key developments in California employment law, including a new test to determine whether workers are independent contractors or employees and what's new on the #MeToo front.

In this episode of The Proskauer Brief, Harris Mufson and Allan Bloom discuss recent legislative developments in New York regarding sexual harassment. We will discuss recently enacted significant measures, including the prohibition of nondisclosure clauses in settlement agreements, unless the complainant prefers confidentiality, mandatory training requirements and the expansion of the NYS Human Rights Law to nonemployees including contractors, subcontractors, vendors, and consultants.

In this episode of The Proskauer Brief, partner Harris Mufson and associate Laura Fant discuss the latest developments in Title VII. We will discuss the two recent circuit court decisions concerning the scope of sex discrimination under Title VII, one by the Second Circuit and the other by the Sixth Circuit. In addition, we will highlight some of the state and city statutory prohibitions that exist against sexual orientation discrimination throughout the country.

In this benefits law edition of The Proskauer Brief, senior counsel Anthony Cacace and partner Robert Projansky discuss how severance plans can be subject to ERISA. We will discuss the key advantages of having severance pay arrangements covered by ERISA and what employers can do to design plans that comply with the substantive and procedural requirements of ERISA, but also maximize the likelihood of benefitting from ERISA coverage. Whether a severance plan or arrangement is governed by ERISA is a rather fact-intensive analysis, so be sure to tune in for how those facts and circumstances can give rise to an ERISA plan.

In this episode of The Proskauer Brief, partner Harris Mufson and associate Michelle Gyves discuss the main laws governing background checks for employers. We will discuss how employers can utilize the federal Fair Credit Reporting Act (FCRA) to conduct pre-employment background checks on candidates.  In addition to FCRA, we also discuss how “ban the box” and credit check laws play a role in screening potential employees.  Be sure to tune in for more information on how these laws can affect both employers and candidates.

In this episode of The Proskauer Brief, partner Harris Mufson and associate Laura Fant discuss recent amendments to the New York Earned Sick Time Act, which provides for paid sick days for eligible employees working in New York City. We will discuss how the recent changes will now both expand the covered reasons for leave under the law, and also expand the family members that employees can take leave to care for. In addition, we will highlight several other cities and states outside of New York that have adopted or are in the process of adopting similar laws.

In this edition of The Proskauer Brief, partner Harris Mufson and associate Laura Fant discuss the challenges and pitfalls surrounding requests for multiple medical leaves of absence.  We will talk about the obligation of employers to provide reasonable accommodation under the Americans with Disabilities Act and related laws.  We will also discuss a recent decision from the Seventh Circuit holding that extended leaves of absence may not be required to be granted in all circumstances, and talk about how courts in other jurisdictions, as well as the EEOC, take a very different approach.  Managing employee leave is a challenge that many employers and HR professionals face every day, so be sure to tune in for an update on this timely and relevant topic.

Unfortunately, disaster scenarios have become all too common and can cause significant disruption for employers, employees and their affected family members. In the wake of Hurricanes Harvey, Irma, and Maria, Paul Hamburger, co-chair of Proskauer’s Employee Benefits & Executive Compensation Group, explores the unique issues that employers must consider when preparing their employee benefits disaster relief programs.

Unfortunately, disaster scenarios have become all too common and can cause significant disruption for employers, employees and their affected family members. In the wake of Hurricanes Harvey, Irma, and Maria, Paul Hamburger, co-chair of Proskauer’s Employee Benefits & Executive Compensation Group, explores the unique issues that employers must consider when preparing their employee benefits disaster relief programs.