Tag: government

Pay Frequency Claims Pass Muster in New York

After avoiding the limelight for decades, New York State’s manual worker pay frequency law has taken center stage.

Specifically, New York Labor Law (NYLL) § 191(1)(a) requires private employers to pay manual workers weekly, rather than semi-monthly. As we have previously reported, the law is broadly applied to cover not only manual laborers in the traditional sense of the term but to a wide range of physical work, including retail, food preparation, home care, and more.

Ever since a New York appellate court equipped manual workers with a private right of action, pay frequency claims have surged, with recent cases proving difficult for employers to dismiss at the outset. Unless and until a different appellate court reverses course, employers can expect these actions to keep rolling in.

Surge in Claims After Vega

Until recently, enforcement of the pay frequency law was left to the New York Department of Labor (NYDOL), which imposed modest penalties for pay frequency violations. In the 2019 case Vega v. CM & Associates Construction Management LLC, however, a New York Appellate Division Court held that § 191 permits employees to seek liquidated damages for the untimely payment of wages, even if the wages are paid in full. The Vega decision equipped manual workers with a private right of action and spawned an influx of litigation in this area.

Employers that violate the pay frequency law must pay the full amount of unpaid wages and may be liable for liquidated damages equal to 100% of untimely-paid wages, as well as interest, costs, and attorneys’ fees. (Certain employers with at least 1,000 workers may request that the NYDOL grant an exemption to the weekly-pay requirement.) For those covered by the law, New York’s six-year statute of limitations means pay frequency claims could continue to mount.

Manual Workers Defined Broadly

While the NYLL defines “manual worker” as “a mechanic, workingman or laborer,” the NYDOL imposes a more contemporary and expansive definition, interpreting “manual workers” to include those who spend at least 25% of their working time engaged in physical labor. Physical labor can include countless tasks, including stocking shelves, standing or walking for long periods of time, preparing food, styling hair, cleaning a workplace, and providing care for others. Therefore, a wide array of jobs, from retail to home care workers, could be covered under the pay frequency law. Courts undertake factual, case-by-case inquiries to determine whether a plaintiff is considered a manual worker.

Federal Courts Follow Suit

Federal courts in New York have uniformly followed the Vega ruling by allowing claims brought under § 191(1)(a) to proceed. They have rejected arguments that were once thought to be potential hurdles, such as a plaintiff’s lack of standing for failure to identify a concrete harm. Unless and until an appellate court retreats from Vega, pay frequency claims will likely continue to advance through the courts.

To avoid costly litigation, covered New York employers are advised to evaluate whether they employ manual workers as the term is defined by the NYDOL and to consider revising their pay frequency practices as applicable.

© 2023 Foley & Lardner LLP
For more articles on labor law, visit the NLR Labor & Employment section.

Employment-Based Immigration Updates for 2023

As we move deeper into the new year, the U.S. government continues to try to resolve the challenges facing the immigration system due to the disruptions of the COVID-19 pandemic and the resulting processing backlogs. These challenges may still continue, but new changes and updates have already taken effect—and more will likely come in 2023, impacting employers and the decisions they make with regard to their foreign national employees. Below are several updates the U.S. government has already released that impact employment-based immigration processes.

USCIS Proposed Fee Increases

On January 4, 2023, U.S. Citizenship and Immigration Services (USCIS) proposed changes to its fees for certain types of cases. The changes to the fees are dramatic increases to some employment-based visa types and are in an effort to make up for funding shortages that have impacted USCIS. Proposed filing fee increases for the following employment-based visa types include:

  • H-1B: $460 to $780
  • H-1B registration fee: $10 to $215
  • L-1: $460 to $1,385
  • O-1: $460 to $1,055
  • Adjustment of Status Application (I-485): $1,225 to $2,820

As we previously reported, the proposed rule—which is in the public comment phase—also includes a change to the existing premium processing timeline. The timeline would increase from fifteen calendar days to fifteen business days.

Continued Expansion of Premium Processing

On May 24, 2022, USCIS implemented a phased approach to expanded premium processing service. In 2022, premium processing was expanded to I-140 petitions, and on January 30, 2023, premium processing will be available to all EB-1C multinational executive and manager and EB-2 National Interest Waiver petitions. The January 30 expansion will include new filings as well as upgrades on pending petitions.

USCIS’s next phase of premium processing expansion will apply to the following applications:

  • Form I-539, Application to Extend/Change Nonimmigrant Status
  • Form I-765, Application for Employment Authorization

Foreign National Employees and RIFs

With changes in the U.S. economy and world markets, employers may start conducting reductions in force (RIF) to adjust to new budget goals. RIFs have the potential to impact foreign national employees. As we discussed in a recent podcast, employers may want to consider the potential impact of restructurings on workers who are in nonimmigrant status, those who are in the permanent residency process, and students working in F-1 status.

Equal Pay Transparency Laws

An increasing number of states and local jurisdictions—such as California, Colorado, Connecticut, New York State, New York City, Rhode Island, and Washington—have implemented equal pay transparency (EPT) laws that now require employers to make additional disclosures regarding offered salaries and/or benefits on job requisitions and postings. This will have a significant impact on the PERM process for green card applications in these jurisdictions by mandating employers list a salary or salary range on PERM and non-PERM recruitment materials. EPT laws vary across jurisdictions as to which types of postings or recruitment efforts will require additional information.

Nonimmigrant Visa Interview Waivers Extended Until December 31, 2023

In an effort to reduce visa wait times and processing backlogs at U.S. consulates, the U.S. Department of State has extended the authority of consular officers to waive in-person interviews for certain nonimmigrant categories through December 31, 2023.

Fiscal Year 2024 H-1B Cap Preparation

With the annual H-1B lottery just two months away, employers may want to consider the foreign national employees they plan to sponsor and enter into this year’s upcoming H-1B cap or quota process. The process will start with the initial registration period, which typically opens at the beginning of March and lasts for a minimum of fourteen calendar days each fiscal year (FY). USCIS will soon announce details about the FY 2024 H-1B registration period. If enough registrations are submitted, USCIS will conduct a random selection of the registration entries to determine who will be eligible to file H-1B petitions. If selected, the employers will have ninety days to file the H-1B petitions, starting April 1. So far, there have not been any changes in this process for this upcoming cycle.

Article By Awanti A. Damle of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

For more immigration legal news, click here to visit the National Law Review.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.

Future of Non-Competes Up in the Air

Future of Non-Competes Up in the Air

The FTC recently announced its proposal to ban non-compete clauses in employment agreements. That proposal is currently in a 60-day period of public comment, and employers are (understandably) nervous. While many employers rely on these provisions to manage competition and protect their IP and confidential information, companies across the country may soon find themselves in the shoes of California employers, having to work around restrictions on non-competes to maximize protection within the increasingly narrow confines of the law.

Employers are not without options in responding to the potential changes should they become law–more aggressive retention incentives, intelligent data security, and stricter confidentiality agreements should all be part of the conversation. Even deferred compensation could be on the table, as noted in the article, though beware of the tax implications. Employers should also keep in mind that the FTC proposal, should it become law, will doubtless be subject to legal challenges and could be tied up in the courts for a while before becoming effective.

“Observers on both sides say that limitations on the clauses will compel employers to get more creative about how they retain talent, using everything from compensation to career advancement to keep workers engaged and loyal to the company. Some companies use deferred compensation—such as retention bonuses or rolling stock options that vest after, say, three years—to give people incentives to stay.”

©1994-2023 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Governor Wolf Signs Act 151 Addressing Data Breaches Within Local Entities

On Thursday, November 3, 2022, Governor Tom Wolf signed PA Senate Bill 696, also known as Act 151 of 2022 or the Breach of Personal Information Notification Act.  Act 151 amends Pennsylvania’s existing Breach of Personal Information Notification Act, strengthening protections for consumers, and imposing stricter requirements for state agencies, state agency contractors, political subdivisions, and certain individuals or businesses doing business in the Commonwealth.  Act 151 expands the definition of “personal information,” and requires Commonwealth entities to implement specific notification procedures in the event that a Commonwealth resident’s unencrypted and unredacted personal information has been, or is reasonably believed to have been, accessed and acquired by an unauthorized person.  The requirements for state-level and local entities differ slightly; this Alert will address the impact of Act 151 on local entities.  While this law does not take effect until May 22, 2023, it is critical that all entities impacted by this law be aware of these changes.

For the purposes of Act 151, the term “local entities” includes municipalities, counties, and public schools.  The term “public school” encompasses all school districts, charter schools, intermediate units, cyber charter schools, and area career and technical schools.  Act 151 requires that, in the event of a security breach of the system used by a local entity to maintain, store, or manage computerized data that includes personal information, the local entity must notify affected individuals within seven business days of the determination of the breach.  In addition, local entities must notify the local district attorney of the breach within three business days.

The definition of “personal information” has been updated, and includes a combination of (1) an individual’s first name or first initial and last name, and (2) one or more of the following items, if unencrypted and unredacted:

  • Social Security number;
  • Driver’s license number;
  • Financial account numbers or credit or debit card numbers, combined with any required security code or password;
  • Medical information;
  • Health insurance information; or
  • A username or password in combination with a password or security question and answer.

The last three items were added by this amendment.  Additionally, the new language provides that “personal information” does not include information that is made publicly available from government records or widely distributed media.

Act 151 defines previously undefined terms, drawing a distinction between “determination” and “discovery” of a breach, and setting forth different obligations relating to each.  “Determination,” under the act, is defined as, “a verification or reasonable certainty that a breach of the security of the system has occurred.”  “Discovery” is defined as, “the knowledge of or reasonable suspicion that a breach of the security of the system has occurred.”  This distinction affords entities the ability to investigate a potential breach before the more onerous notification requirements are triggered.  A local entity’s obligation to notify Commonwealth residents is triggered when the entity has reached a determination that a breach has occurred.  Further, any vendor that maintains, stores, or manages computerized data on behalf of a local entity is responsible for notifying the local entity upon discovery of a breach, but the local entity is ultimately responsible for making the determinations and discharging any remaining duties under Act 151.

Another significant update afforded by Act 151 is the addition of an electronic notification procedure.  Previously, notice could be given: (1) by written letter mailed to the last known home address of the individual; (2) telephonically, if certain requirements are met; (3) by email if a prior business relationship exists and the entity has a valid email address; or (4) by substitute notice if the cost of providing notice would exceed $100,000, the affected class of individuals to be notified exceeds 175,000, or the entity does not have sufficient contact information.  Now, in addition to the email option, entities can provide an electronic notice that directs the individual whose personal information may have been materially compromised to promptly change their password and security question or answer, or to take any other appropriate steps to protect their information.

Act 151 also provides that all entities that maintain, store, or manage computerized personal information on behalf of the Commonwealth must utilize encryption –  this provision originally applied only to employees and contractors of Commonwealth agencies, but was broadened in Act 151.  Further, the act provides that all entities that maintain, store, or manage computerized personal information on behalf of the Commonwealth must maintain policies relating to the transmission and storage of personal information – such policies were previously developed by the Governor’s Office of Administration.

Finally, under Act 151, any entity that is subject to and in compliance with certain healthcare and federal privacy laws is deemed to be in compliance with Act 151.  For example, an entity that is subject to and in compliance with the Health Insurance Portability and Accountability Act of 1996 (HIPAA) is deemed compliant with Act 151.

Although Act 151 is an amendment to prior legislation, the updates create potential exposure for local entities and the vendors that serve them.  For local municipalities, schools, and counties, compliance will require a proactive approach – local entities will have to familiarize themselves with the new requirements, be mindful of the personal information they hold, and ensure that their vendors are aware of their obligations.  Further, local entities will be required to implement encryption protocols, and prepare and maintain storage and transmission policies.

Originally Published by Babst Calland November 29, 2022. Article By Michael T. Korns and Ember K. Holmes of Babst, Calland, Clements & Zomnir, P.C.

Click here to read more legislative news on the National Law Review website.

© Copyright Babst, Calland, Clements and Zomnir, P.C.

Office of Science and Technology Policy Requests Public Input on Biotechnology Regulation

  • The Office of Science and Technology Policy (OSTP) issued a request for information (RFI) today in which it invites public comment on the Coordinated Framework for the Regulation of Biotechnology (the “Coordinated Framework”).
  • The Coordinated Framework, which is a Federal regulatory policy for ensuring the safety of biotechnology products, was first issued in 1986, updated in 1992— to affirm that federal regulation should focus on characteristics of the product and the environment into which it being introduced, and not on the process by which it is produced—and then updated again in 2017 to clarify the roles of EPA, FDA, and USDA. And, in September of this year, Executive Order 14081 directed the three agencies to clarify and streamline regulations to support the safe of use of biotechnology products.
  • Accordingly, the RFI requests comment on seven questions related to the Coordinated Framework. The questions include a request for comment on identification of any regulatory gaps, inefficiencies, or uncertainties; data or information to improve any identified issues; and new or emerging biotechnology products that the agencies should be prepared to address. Comments to the RFI are due by February 3, 2023. Also, on January 12, 2023, OTSP will host a virtual event in which it will listen to public feedback on the RFI.

Article By Food and Drug Law at Keller and Heckman

For more food, drug, and biotechnology legal news, click here to visit the National Law Review.

© 2022 Keller and Heckman LLP

Warning Sign? A New Round of FDA Warning Letters Over CBD Consumer Confusion May Signal a Shift in Government Enforcement

FDA warning letters are nothing new in the cannabis industry. In fact, we here at Budding Trends have covered this topic a number of times (here, here, and here). Not resigned to playing the hits, however, the FDA issued a new set of warning letters on November 21 that may signal a shift in enforcement posture away from solely targeting companies that market CBD as a potential medical treatment and towards including companies that market their products in ways that could cause consumer confusion. This is a “Warning Sign” that might cause the cannabis industry “A Rush of Blood to the Head,” much like Coldplay’s multi-platinum album that recently celebrated its 20-year anniversary. So, turn back the “Clocks,” book your flight to “Amsterdam,” and indulge us if you will — just not too much.

Congress legalized the production of hemp and hemp-derived products under the 2018 Farm Bill. But federal legalization did not exempt the hemp industry from federal regulation. Indeed, the FDA and FTC retain overlapping enforcement authority over CBD marketing, with the FDA having primary authority over labeling. Far more than “A Whisper,” the FDA and FTC have not been shy about issuing warning letters to hemp companies that fail to follow the FDA’s labeling requirements and guidance.

Since its first set of warning letters to CBD companies in April 2019, the FDA has focused its enforcement activity on companies that market their CBD products as treatment and cures for a variety of diseases and illnesses. But the FDA’s most recent warning letters took a different tack, focusing on potential health risks from long-term CBD use, consumer confusion leading to unintentional or overconsumption of CBD, and CBD products that could be seen as marketed to children.

The basis of the FDA’s five new warning letters was that CBD is neither an authorized food additive nor generally recognized as safe. The FDA noted it had “not found adequate information showing how much CBD can be consumed, and for how long, before causing harm,” and claimed that “scientific studies show” potential harm to the “male reproductive system” and “liver” from long-term CBD use. In the FDA’s words, “[p]eople should be aware of the potential risks associated with the use of CBD products.”

The products highlighted in the warning letters included gummies, fruit snacks, lollipops, cookies, teas, and other beverages. The FDA said these products were targeted because consumers may confuse them for traditional foods or beverages, “which may result in unintentional consumption of overconsumption of CBD.” Further, the FDA noted that gummies, candies, and cookies are especially concerning because they may appeal to children. Likewise, the FDA cited tea, coffee, sparkling water, beverage “shots,” and honey as products similar to traditional food that may confuse consumers into over-consuming CBD.

Keeping its focus on unintended consumption or unintended overconsumption, the FDA also chastised one company for failing to specifically list CBD as an ingredient on the label of its hemp-infused tea. This is particularly important to note for hemp companies, many of which have sought to avoid listing “CBD” on the product labels for full spectrum hemp extracts in an effort to avoid the FDA and FTC’s seemingly CBD-focused enforcement actions.

Given this new enforcement posture, CBD companies may consider avoiding marketing attempts that seek to link CBD products too closely with traditional foods and beverages. This may include limiting references to the similarity of CBD products to traditional ones. And CBD companies should continue to avoid product labels and marketing campaigns that would be enticing to children, especially for CBD products that are in a form children might be likely to consume (such as gummies and candies).

It remains to be seen where the FDA will draw the line between appropriate marketing and marketing that goes too far towards confusing consumers, but, aside from a falsetto Chris Martin, “nobody said it was easy.” Until then, watch this space and remember to follow the marketing dos and don’ts we provided in one of our previous blog posts.

Article By J. Hunter Robinson and Josh Kleppin of Bradley Arant Boult Cummings LLP

© 2022 Bradley Arant Boult Cummings LLP

Exporting U.S. Antitrust Law: Are We Really Ready for NOPEC?

The year is 1979. Inflation and lines at the gas pumps caused by a revolution in Iran have stunned Americans. Driven to action, the International Association of Machinists (IAM) files suit in the Central District of California against OPEC and its 14 member countries for participating in a cartel that controls the worldwide price of oil. None of the defendants made any kind of appearance before the court. Nonetheless, the union lost, and its case was dismissed.

Under the Constitution, federal courts are courts of limited jurisdiction. A district court has no power to decide a case over which it has no subject matter jurisdiction. The requirement cannot be waived or avoided; a court that lacks subject matter jurisdiction has no legal authority to entertain the matter. A federal statute known as the Foreign Sovereign Immunity Act of 1976 (FSIA) limits the court’s jurisdiction in cases involving foreign sovereigns and, subject to a few specific exceptions, grants foreign states immunity from the jurisdiction of U.S. courts. The court in IAM v. OPEC raised the FSIA on its own (there being no defendants present) and, finding the OPEC states immune (OPEC itself could not be served), dismissed the case. Thusly did the IAM lose its antitrust case against defendants who never even showed up in court.

The judiciary has resisted the innumerable attempts since 1979 to hold the OPEC cartel accountable for violating U.S. antitrust laws, even though the court’s IAM decision has proven erroneous. Acts by a sovereign “based upon a commercial activity” in the U.S., or affecting U.S. commerce, do not enjoy immunity under FSIA. Although the district court in IAM didn’t think so, the Ninth Circuit on appeal made clear that pricing of oil on world markets is indeed commercial activity that affects the U.S. economy and, therefore, not entitled to sovereign immunity. But the Appeals Court nonetheless sidestepped the case, taking refuge in the judge-made Act-of-State doctrine. The doctrine is prudential, as opposed to jurisdictional, and amounts to a voluntary renunciation of jurisdiction by a court when its decision could interfere with the conduct of foreign policy by the executive branch. Indeed, it is easy to see how a suit against the members of OPEC for price fixing might intrude into a sensitive foreign policy area.

In the four decades since IAM, these considerations have obstructed U.S. courts from holding OPEC accountable for a cartel formed for the purpose of and with the effect of stabilizing the price of a commodity in interstate or foreign commerce, which is illegal per se. As recently as 2010, the Obama administration urged the Fifth Circuit to dismiss an antitrust suit brought by private plaintiffs on Act-of-State grounds, it being up to the executive branch and not the courts to conduct foreign policy and protect national security interests.

Since 2000, when the first No Oil Producing and Exporting Cartels (NOPEC) Act was introduced in the House, the same legislation has been introduced no less than four times. NOPEC came closest to passage in 2007, when different versions of the bill passed the House and the Senate but were not reconciled. The House and Senate judiciary committees have now both approved the bill, and the latest version is on the Senate’s legislative calendar. Congress could act quickly if there is bipartisan support, otherwise it will take several months and require reintroduction in 2023.

NOPEC consists of three operative parts.

  • First, it would amend the Sherman Antitrust Act by adding a new Section 7(a) that explicitly makes it illegal for any foreign state to act collectively with others to limit production, fix prices, or otherwise restrain trade with respect to oil, natural gas, or other petroleum products. Judicial enforcement and a remedy would be available only to the Department of Justice, so the bill does not create a private right of action.

  • Second, it would amend FSIA to explicitly grant jurisdiction to U.S. court against foreign sovereigns to the extent they are engaged in a violation of the new Section 7(a).

  • Third, the legislation clarifies that the Act-of-State doctrine does not prevent U.S. courts from deciding antitrust cases against sovereigns alleged to have violated the new Section 7(a).

Calls for taking a harder line against OPEC are growing stronger in light of recent actions taken by the cartel. In May, for example, Saudi Arabia and 10 other OPEC members voted to slash oil production – resulting in high gas prices – as the U.S. and other nations imposed embargoes on Russian oil. OPEC’s production cuts provided Russia with a substantial lifeline in its increasingly difficult, costly, and prolonged invasion of Ukraine.

The Senate bill is sponsored by ​​Senate Judiciary Committee Ranking Member Chuck Grassley and cosponsors Sens. Amy Klobuchar (D-MN) Mike Lee (R-UT), and Patrick Leahy (D-VT), who argue that OPEC’s price-fixing goes directly against the idea of fair and open markets, with current laws leaving the U.S. government “powerless” over OPEC. But are we really ready for NOPEC?

The concern over interference with foreign policy is far from trivial.

The American Petroleum Institute (API) recently sent a letter to Congress opposing the NOPEC bill, stating it would harm U.S. military, diplomatic, and business relations. API President and CEO Mike Sommers warned that while NOPEC is a noble endeavor designed to protect consumers, it would open the U.S. up to reciprocal lawsuits by foreign entities, writing that this could devastate certain political relations and trigger retaliation from OPEC countries. Other NOPEC critics say OPEC countries may limit other business dealings with the U.S., including lucrative arms deals or by pulling in their investments, as Saudi Arabia threatened to do in 2007, when the Deputy Saudi Oil Minister said the country would pull out of a multi-billion Texas oil refinery project unless the DOJ filed a statement of interest urging dismissal of an antitrust case then pending in the U.S. courts. In 2019, Saudi Arabia and OPEC threatened to start selling their oil in currencies other than the dollar, which would weaken the dollar’s position as the global vehicle currency.

For these reasons, it’s not clear what the White House would do if NOPEC passes. The Biden administration’s view of the measure seems to have shifted a bit, but it hasn’t come out strongly one way or the other. This is hardly surprising given the delicate and complex nature of the issue, the ongoing impact of Russia’s war on Ukraine, and the great importance voters place on the price of gas. Then-Press Secretary Jen Psaki said on May 5, 2022, that the “potential implications and unintended consequences of this legislation require further study and deliberation.” More recently, National Security Advisor Jake Sullivan and Brian Deese, President Biden’s Director of the National Economic Council, said that nothing is off of the table – that the administration is assessing the situation and inviting recommendations. On Oct. 5 the Department of Energy said it would release another 10 million barrels of oil from the Strategic Petroleum Reserve. In making that announcement, Sullivan and Deese said the administration will consult with Congress on “additional tools and authorities to reduce OPEC’s control over energy prices.” They also reiterated the importance of investing in clean American-made energy to reduce reliance on foreign fossil fuels.

OPEC has such tremendous sway over U.S. gas prices and national security it is no wonder Congress continues to try to do something to free U.S. from OPEC’s whims and hold it accountable for going against the ideals of free markets. But whether NOPEC is the right approach remains an open question.

The antitrust laws represent a national ideological perspective on the most beneficial way to organize an economy. Policy differences between nations are supposed to occur in the diplomatic arena, not in the courts of one country or another. And if OPEC or its members lose an antitrust case in a U.S. court, how will the court enforce its judgment?

Article By Jonathan Rubin of MoginRubin

For more antitrust and trade regulation legal news, click here to visit the National Law Review.

© MoginRubin LLP

Congress Votes to Impose Bargaining Agreement to Avoid Nationwide Railroad Strike

Both the House and Senate have passed legislation under the Railway Labor Act to avoid a railroad strike by imposing the bargaining agreement brokered by President Joe Biden in September 2022.

The House already voted in favor of the legislation. (For details of the bill, see our article, President Biden Calls on Congress to Avoid Mass Railroad Strike.) With the Senate also voting to pass the main bill, by an 80-15 vote, the threat of a strike has been averted. The legislation moves to the president for his signature. Biden has indicated he will sign the bill.

While the House voted in favor of the separate, additional piece of legislation that would have added seven paid sick leave days annually for the rail workers, the Senate did not have enough votes to pass that bill. President Biden vowed in a separate statement to seek paid leave in the future not just for rail workers, but for all workers.

What was passed by Congress in its joint resolution was short and succinct. The three-page joint resolution stated that all tentative agreements entered into by the rail carriers and the unions were considered in effect as if they had been ratified. The exact terms of each collective bargaining agreement vary by union and were not part of the bill that was passed. This is a result of the special powers given to Congress under the Railway Labor Act.

All contracts contained generous wage increases: roughly 24 percent over four to five years with one extra day of leave. However, the other detailed terms will vary across the dozen national craft unions.

Article By Jonathan J. Spitz, Richard F. Vitarelli, James M. Stone, and James Verdi of Jackson Lewis P.C.

For for labor and employment legal news, click here to visit the National Law Review.

Jackson Lewis P.C. © 2022

Following the Recent Regulatory Trends, NLRB General Counsel Seeks to Limit Employers’ Use of Artificial Intelligence in the Workplace

On October 31, 2022, the General Counsel of the National Labor Relations Board (“NLRB” or “Board”) released Memorandum GC 23-02 urging the Board to interpret existing Board law to adopt a new legal framework to find electronic monitoring and automated or algorithmic management practices illegal if such monitoring or management practices interfere with protected activities under Section 7 of the National Labor Relations Act (“Act”).  The Board’s General Counsel stated in the Memorandum that “[c]lose, constant surveillance and management through electronic means threaten employees’ basic ability to exercise their rights,” and urged the Board to find that an employer violates the Act where the employer’s electronic monitoring and management practices, when viewed as a whole, would tend to “interfere with or prevent a reasonable employee from engaging in activity protected by the Act.”  Given that position, it appears that the General Counsel believes that nearly all electronic monitoring and automated or algorithmic management practices violate the Act.

Under the General Counsel’s proposed framework, an employer can avoid a violation of the Act if it can demonstrate that its business needs require the electronic monitoring and management practices and the practices “outweigh” employees’ Section 7 rights.  Not only must the employer be able to make this showing, it must also demonstrate that it provided the employees advance notice of the technology used, the reason for its use, and how it uses the information obtained.  An employer is relieved of this obligation, according to the General Counsel, only if it can show “special circumstances” justifying “covert use” of the technology.

In GC 23-02, the General Counsel signaled to NLRB Regions that they should scrutinize a broad range of “automated management” and “algorithmic management” technologies, defined as “a diverse set of technological tools and techniques to remotely manage workforces, relying on data collection and surveillance of workers to enable automated or semi-automated decision-making.”  Technologies subject to this scrutiny include those used during working time, such as wearable devices, security cameras, and radio-frequency identification badges that record workers’ conversations and track the movements of employees, GPS tracking devices and cameras that keep track of the productivity and location of employees who are out on the road, and computer software that takes screenshots, webcam photos, or audio recordings.  Also subject to scrutiny are technologies employers may use to track employees while they are off duty, such as employer-issued phones and wearable devices, and applications installed on employees’ personal devices.  Finally, the General Counsel noted that an employer that uses such technologies to hire employees, such as online cognitive assessments and reviews of social media, “pry into job applicants’ private lives.”  Thus, these pre-hire practices may also violate of the Act.  Technologies such as resume readers and other automated selection tools used during hiring and promotion may also be subject to GC 23-02.

GC 23-02 follows the wave of recent federal guidance from the White House, the Equal Employment Opportunity Commission, and local laws that attempt to define, regulate, and monitor the use of artificial intelligence in decision-making capacities.  Like these regulations and guidance, GC 23-02 raises more questions than it answers.  For example, GC 23-02 does not identify the standards for determining whether business needs “outweigh” employees’ Section 7 rights, or what constitutes “special circumstances” that an employer must show to avoid scrutiny under the Act.

While GC 23-02 sets forth the General Counsel’s proposal and thus is not legally binding, it does signal that there will likely be disputes in the future over artificial intelligence in the employment context.

Article By Steven M. Swirsky, Adam S. Forman, Nathaniel M. Glasser, Neresa A. De Biasi, and Ridhi D. Madia of Epstein Becker & Green, P.C.

For more labor law legal news, click here to visit the National Law Review.

©2022 Epstein Becker & Green, P.C. All rights reserved.

2022 Midterm Election Guide

The 2022 midterm elections produced modest, but perhaps still significant, changes to Congress. Democrats outperformed in many parts of the country, significantly stemming the tide of the “red wave” many analysts were expecting.

The results for partisan control of Congress remain in doubt.

The power balance in the U.S. Senate may not be known until next month, but the Democrats are seemingly poised to retain control. The Pennsylvania Senate seat flipped to the Democrats while Nevada could flip Republican with the Democratic incumbent currently behind. Three other Senate contests remain uncalled, with the incumbent party narrowly positioned to win all three. That would leave the Senate tied, waiting for the results of a Georgia run-off in December to determine which party controls the Senate.

The House of Representatives appears likely to shift to Republican control, but by the slimmest of margins. The final outcome and margins in the House will not be known until more votes are counted and several very close races are called. If Republicans win control of the House, as seems likely, it is unclear if their razor-thin majority—which could be between two and twelve seats—will allow their leaders to govern effectively.

To help assess the 2022 midterm election, we have prepared a comprehensive guide that summarizes the results and their impact on the 118th Congress, which convenes in January. The Election Guide lists all new members elected to Congress, updates the congressional delegations for each state, and provides a starting point for analyzing the coming changes to House and Senate committees, including potential new chairs and ranking members.

Our committee analysis assumes that the Democrats retain control in the Senate, but Republicans flip the House and chair committees.

Please click here to download the most up-to-date version of this Election Guide, which will be updated on an ongoing basis as more of the close races are called and committees are finalized.

Article By Tim L. Peckinpaugh of K&L Gates

For more election law and legislative news, click here to visit the National Law Review.

Copyright 2022 K & L Gates