New Federal Guidelines for AI-Enabled Hiring Tools
Question: I’m thinking of using Artificial Intelligence to streamline my recruitment process, but I’m not sure where to start. Are there any resources for me to understand this area better?
Answer: Yes. On September 24, 2024, the Department of Labor, in collaboration with the Partnership on Employment & Accessible Technology (PEAT), announced the publication of its AI & Inclusive Hiring Framework website. This website is described as a “framework” that gives employers the tools they need to support the inclusive use of AI in hiring and benefit practices. This framework was created in response to the Biden Administration’s Executive Order on the Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.
AI-powered recruitment and selection tools can streamline the hiring process by identifying potential candidates and screening applicant resumes. However, employers must ensure that their AI hiring tools do not intentionally or unintentionally discriminate against or create barriers for certain protected classes of job seekers. For example, if a recruitment algorithm screens out individuals with a gap in employment, that algorithm could have a disparate impact on individuals who took extended time off due to protected medical conditions.
The new website provides ten “focus areas” for employers to consider to create and maintain non-discriminatory AI hiring procedures:
- Identify legal requirements;
- Establish staff roles;
- Inventory technology;
- Work with vendors;
- Assess impacts;
- Provide accommodations;
- Use explainable AI;
- Ensure human oversight;
- Manage incidents; and
- Monitor regularly.
Employers do not need to implement all ten of these “focus areas” at once. Instead, they are intended as a guide to help employers use AI in their hiring process in an efficient and non-discriminatory manner.
The key takeaways from the “focus areas” are as follows. Employers should assess the AI technology, determine its limitations, and consider how it may help meet legal obligations. Employers should define and assign roles within the workplace to ensure AI is being used with appropriate oversight. Employers should also implement appropriate training procedures to ensure employees are apprised on the use of AI in the hiring process. When working with AI vendors, employers should identify how they intend to use the AI tools and ask about the measures taken to avoid potential unlawful bias in AI tools. Employers should also consider creating policies that clearly explain and standardize how the AI technology is being used and administered. After implementation, employers should regularly monitor the performance of their AI technology. In doing so, they should assess its trustworthiness and evaluate risks related to compliance with applicable laws.
Employers can find the website at https://www.peatworks.org/. The DOL and PEAT recommend that you pace yourself when implementing AI into your hiring practices. Ideally, this can be done in stages based on what makes the most sense for your organization. Employers who have already implemented such tools should review the DOL’s framework to ensure their practices do not create unwanted liability. Employers can work with counsel to monitor any applicable legal developments and ensure that the use of AI in the workplace is both legally compliant and efficient.
Heat Illness Prevention in Indoor Places of Employment
Question: I read about new regulations for indoor heat illness prevention. What do I need to do to comply with these regulations?
Answer: On July 23, 2024, Cal/OSHA’s regulations for “Heat Illness Prevention in Indoor Places of Employment” took effect. These regulations require safety measures for most indoor workplaces where the temperature reaches 82 degrees Fahrenheit, such as restaurants, warehouses, and manufacturing facilities. If a company has a covered workplace, the company must abide by safety requirements such as providing water, cool-down rest periods, and training to employees.
Employers must also develop and implement a written indoor heat prevention plan. The plan must be made available at the worksite to employees, in the language understood by the majority of the employees. It must also be provided to Cal/OSHA upon request. The plan may appear as a standalone section in the employer’s Injury and Illness Prevention Program or as a separate document. The plan must include information such as:
- Provision for Drinking Water: Covered employers must give employees access to clean, cool drinking water as close as practicable to their work area. If a continuous water supply is not possible, employers must provide enough water (i.e., one quart of drinking water per hour) for each employee.
- Provision of Cool-Down Rest Periods: Covered employers must allow and encourage employees to take a “preventative cool-down rest” in a cool-down area when employees feel the need to do so to protect themselves from overheating. Access to cool-down areas must be permitted at all times and employers must ensure that the cool-down areas are maintained at a temperature below 82 degrees Fahrenheit, are blocked from direct sunlight, and are shielded from other high radiant heat sources (to the extent feasible). The standard instructs that employees must not be ordered back to work until any signs or symptoms of heat illness have abated, and in no event less than five minutes.
- Acclimatization: Acclimatization is the process of allowing workers to adjust to hot environments over time, reducing their risk of heat-related illnesses. Covered employers must closely observe employees who are newly assigned to high heat conditions for signs of heat stress during their first 14 days of work in these conditions. Additionally, during a heatwave, if employers cannot reduce indoor heat using methods like air conditioning or fans, they must have a supervisor closely observe employees for any heat-related issues.
- Emergency Response Procedures: Covered employers must have a plan for responding to symptoms and/or signs of heat illness and heat illness related emergencies.
Cal/OSHA has a model prevention plan, which employers can access on the Department of Industrial Relations (“DIR”) website: https://www.dir.ca.gov/dosh/heatillnessinfo.html.
Employers with covered workplaces must comply with additional requirements when the workplace temperature or heat index is 87 degrees Fahrenheit or higher, or where the temperature or heat index is 82 degrees Fahrenheit but feels hotter because employees are (1) wearing clothing that restricts heat removal or (2) working in high radiant heat areas. The additional requirements include measuring and recording the temperature and heat index and implementing control measures in the workplace where feasible. Moreover, employers with outdoor workplaces may also need to comply with separate regulations covering outdoor workplace.
The DIR website includes high level factual summaries and FAQs on the Cal/OSHA regulations. While the information on this website may be used as a starting point, employers may want to connect with their employment counsel on specific questions.
Workplace Violence Prevention Training
Question: My company prepared a written workplace violence prevention plan to comply with the new law on workplace violence. Is our written plan all we need to comply with the new law?
Answer: To fully comply with the new law regarding workplace violence prevention, covered employers must complete three essential tasks: (1) establish the written workplace violence prevention plan; (2) train employees on workplace violence; and (3) start maintaining a log of all workplace violence incidents. Cal/OSHA is not allowing a grace period, so all three of these items must be accomplished beginning July 1, 2024.
Common questions surrounding the training include when the training should be provided, what it should cover, and how it should be conducted. Workplace violence training must be provided to all employees (including managers and supervisors ) when the plan is first established and annually thereafter. At a minimum, the initial and annual training should cover:
- Familiarizing employees with the plan (such as how to obtain a copy, how to participate in its development/implementation);
- The definitions of key terms and the requirements of the new law;
- How to report workplace violence incidents without fear of retaliation;
- Understanding the job-specific violence hazards and the preventative and corrective measures in place. For example, a review of emergency exit locations and a discussion of the systems in place at the worksite to notify employees of emergencies.
- The purpose of the violent incident log; and
- Opportunities for interactive discussions with someone knowledgeable about the written plan. This includes employee questions and feedback.
Training sessions do not need to be overly formal, and employers do not need to hire a vendor to conduct the training. The training can be conducted by anyone with knowledge of the employer’s written plan, such as the plan administrator or a member of Human Resources. Most of the information in the training is essentially reviewing the plan itself, with opportunities for questions and feedback. There is no requirement regarding how long the training must be, so employers may record a training where you review the plan document (which will include most of the information required for the training) and discuss specific risks to the employees and how to respond. The training documents that you maintain can be the plan, the emails confirming the training session, and the sign in sheets for the training.
The main thing to remember about the training is that it must be interactive and provide opportunities for meaningful questions, answers, and feedback relating to the written plan and the employer’s procedures. Employers should also have a procedure in place to consider the concerns and feedback of their staff. The training is not required to be in person or live. However, employees must still be given an opportunity to submit interactive questions which should be answered by the employer as soon as feasible.
Employers must also provide further training when a new or previously unrecognized workplace violence hazard has been identified and when changes are made to the written plan. Unlike the initial and annual training, this additional training can be limited to the new hazard or change to the plan.
Records related to employee training must be kept for at least five years and provided to employees for free upon request. Employers with questions regarding workplace violence training or other requirements are encouraged to contact their labor counsel.
Work/Life Balance and the Right to Disconnect
Question: As an employer, what can I do to help my employees with their work-life balance?
Answer: In the age of technology and the growing commonality of working from home, the line between work life and personal life can become muddled. Texting, social media, and applications like Slack may provide employees with access to their workplace 24 hours a day; however, such unfettered access can lead to an unhealthy work-life balance, which in turn can result in burnout and lower productivity.
California is currently considering Assembly Bill 2751, which would give employees the “right to disconnect” during nonworking hours. This bill, which would apply to employers of all sizes, would prohibit employers from contacting employees during “nonworking hours,” except in cases of an emergency or scheduling change that would impact the next 24 hours. The bill defines an emergency as an unforeseen situation that threatens an employee, customer, or the public, disrupts or shuts down operations, or causes physical or environmental damage. Absent these exceptions, employees would be able to ignore communications from their employer and co-workers during nonworking time — including days off, holidays, and vacations — without having to worry about repercussions.
Proposed by San Franciso Assemblyman Matt Haney, this bill would require employers to clearly establish an employee’s working and nonworking hours and communicate these hours to employees in writing. In discussing the bill’s purpose, Haney said, “[w]ork has changed drastically compared to what it was just 10 years ago. Smartphones have blurred the boundaries between work and home life. Workers shouldn’t be punished for not being available 24/7 if they’re not being paid for 24 hours of work. People have to be able to spend time with their families without being constantly interrupted at the dinner table or their kids’ birthday party, worried about their phones and responding to work.” Industries with traditionally late or erratic hours would still be allowed to contact workers during these hours if the working hours and non-contact hours are clearly communicated to employees in writing. Employers who repeatedly violate the law and contact employees during nonwork hours could be subjected to fines.
As currently written, there is no distinction between exempt and nonexempt employees. However, the bill is in its early stages and will likely undergo many changes before its possible enaction. Several other countries have similar laws, including France, Australia, Argentina, Belgium, Columbia, Greece, Mexico, Portugal, Italy, and Spain. Studies have shown that workers with the “right to disconnect” are healthier, happier, and more productive in the workplace.
Whether AB 2751 is passed or not, California has existing laws that place limitations on how employers communicate with their employees and how to compensate employees for work performed outside of their normal working hours, such as overtime.
In the meantime, employers can help employees in achieving a successful work-life balance by communicating expectations on work schedules and hours. Employers should encourage employees to use accrued vacation and paid time off and encourage them to fully unplug from work during this time off by ensuring workloads are properly delegated in an employee’s absence. Employers can also keep emails and other office communications within the business’ typical office hours.
AB 2751 is still in the committee stages of the legislative process with this year’s legislative session, which ends on August 31, 2024.
New, Relaxed Guidelines for Dealing with COVID in the Workplace
Question: Have there been any changes to the testing requirements or isolation periods for COVID-19 positive cases in the workplace?
Answer: Yes, on January 9, 2024, Cal/OSHA and the California Department of Public Health issued an order revising its COVID-19 Prevention Non-Emergency Regulations (“Regulations”). These changes include revisions to the definition of infectious period, isolation requirements for positive cases, and close contact testing.
Infectious Period
The Regulations now define the COVID-19 infectious period as:
- For symptomatic confirmed cases, from the day of symptom onset until 24 hours have passed with no fever, without the use of fever-reducing medications, AND symptoms are mild and improving.
- For asymptomatic confirmed cases, there is no infectious period for the purpose of isolation or exclusion. If symptoms develop, the criteria above will apply.
CDPH still recommends a person who tests positive for COVID-19 wear a mask through day 10, and acknowledges that the “potential infectious period” is 2 days before symptoms develop or before the COVID-19 positive test date. However, for purposes of isolation and exclusion from work, this shorter infectious period is now the working definition.
Isolation Period
Previously, non-symptomatic COVID-19 positive cases needed to isolate for five days. The new Regulations for non-symptomatic positive cases do not require any isolation period, but simply require the person wear a mask and avoid contact with people at a high risk for “severe COVID-19” for ten days.
For symptomatic cases, the COVID-19 positive person should be excluded from the worksite for 24 hours, and may return when 24 hours have passed without fever and when symptoms are mild and improving.
Close Contact Testing
CDPH no longer recommends testing for all close contacts. Testing is recommended only for people with new COVID-19 symptoms and close contacts who are at higher risk of severe disease or who have contact with people who are at higher risk of severe disease.
Employers must continue to make COVID-19 testing available at no cost and during paid time to all employees with a workplace close contact, except for asymptomatic employees who recently recovered from COVID-19.
In workplace outbreaks or major outbreaks, the Regulations still require testing of all close contacts in outbreaks, and everyone in the exposed group in major outbreaks. Employees with symptoms who refuse to test must be excluded for at least 24 hours from symptom onset, and can return to work only when they have been fever-free for at least 24 hours without the use of fever-reducing medications, and symptoms are mild and improving.
Requirements that Remain the Same:
The Regulations that have not changed include addressing COVID-19 as a workplace hazard either in employers’ Injury and Illness Prevention Programs or in a separate COVID-19 prevention plan. Employers must continue to ensure returning COVID-19 cases use face coverings until 10 days have passed from the date symptoms began or, for asymptomatic cases, from the date of their first positive test.
These COVID-19 Prevention Non-Emergency Regulations remain in effect until 2025. However, as we see from the January 9, 2024 update, these regulations can still be revised and updated. Employers can review the most recent guidance on Cal/OSHA’s COVID-19 Prevention Non-Emergency Regulations FAQ page and should update their COVID-19 policies to reflect the latest information.
Ensuring a Festive Holiday Celebration for Your Company
Question: We are in the process of planning our holiday party. What legal considerations should we be aware of to ensure a fun and safe holiday party?
Answer: Yes; As the holiday season approaches, businesses are gearing up for the annual tradition of organizing a company holiday party. While the goal is to foster a spirit of camaraderie and celebration, employers should consider several factors to ensure a gathering that is not only legally compliant but also enjoyable for all participants.
- Responsible Alcohol Consumption: Opting to serve alcohol at your holiday party is a common choice, even for companies with a Drug- and Alcohol-Free Workplace policy. However, maintaining a balance and ensuring responsible consumption is important for the safety of all attendees. Employers have a responsibility to provide a safe environment, and in certain circumstances employers may be held liable for the actions of their employees even after they leave the holiday party, such as with alcohol-involved auto accidents. To mitigate risks, employers can consider measures such as distributing drink tickets, setting a cut-off time for alcohol service, and making food and water readily available to lessen the impact of alcohol. Offering alternative options like "mocktails" provides a festive atmosphere without alcohol. For businesses with minors or employee family members on the guest list, extra caution is advised to prevent underage drinking.
- Upholding Respectful Conduct: Despite the more relaxed atmosphere of a holiday party, it is important to remember that all company policies, including anti-harassment and code of conduct guidelines, remain in effect. Attendees should adhere to these policies, and decorations and gifts should avoid anything offensive or sexually suggestive. Employers play a vital role in setting the tone by reminding employees of these policies before the event and reiterating them during any gift exchange announcements. In the event of a complaint of harassment or violation of the code of conduct, prompt and thorough investigation followed by appropriate remedial action is necessary.
- Voluntary Attendance: Making attendance at the company holiday party voluntary respects individual preferences and helps avoid potential legal issues related to wage and hour regulations. Some employees may have reservations about attending events associated with specific holidays or where alcohol is served. Mandatory attendance not only goes against these preferences but can also expose employers to additional liabilities for any injuries that may occur during the event. Employers should also ensure gift exchanges are voluntary.
- Inclusive Party Theme: To foster inclusivity and prevent anyone from feeling excluded or discriminated against, employers should avoid centering the party theme around a specific holiday or religion. Instead, opt for neutral, winter-themed décor that creates a welcoming atmosphere for all employees.
Planning a holiday party for your company involves more than just arranging food and entertainment. By considering responsible alcohol consumption, upholding respectful conduct, making attendance voluntary, and embracing an inclusive party theme, employers can create a festive and secure environment for all employees to enjoy.