Illinois is the latest in a growing trend among states and cities throughout the country to enact salary transparency laws. Illinois joins the ranks of California, Washington and Colorado, among others, requiring employers to disclose pay scale and benefits in job postings. On August 11, 2023, Governor J.B. Pritzker signed House Bill 3129 into law. Like its California, Washington and Colorado counterparts, the Illinois law is rooted in historic pay inequity among marginalized groups. The law amends Illinois’ Equal Pay Act and, beginning January 1, 2025, requires employers with 15 or more employees to disclose pay scales and benefits in job postings, as well as retain records of compliance with the amended law. Continue Reading Illinois is the Latest State to Enact a Salary Transparency Law
Employers’ burgeoning use and reliance upon artificial intelligence has paved the way for an increasing number of states to implement legislation governing its use in employment decisions. Illinois enacted first-of-its-kind legislation regulating the use of artificial intelligence in 2020, and as previously discussed, New York City just recently enacted its own law. In 2023 alone, Massachusetts, Vermont and Washington, D.C. also have proposed legislation on this topic. These legislative guardrails are emblematic of our collective growing use of artificial intelligence, underscore the importance of understanding the legal issues this proliferating technology implicates, and need to keep abreast of the rapidly evolving legislative landscape. Below is a high-level summary of AI-related state legislation and proposals of which employers should be aware.Continue Reading States’ Increased Policing of Artificial Intelligence in the Workplace Serves as Important Reminder to Employers
As we previously reported, the Equal Employment Opportunity Commission (“EEOC”) has had on its radar potential harms that may result from the use of artificial intelligence technology (“AI”) in the workplace. While some jurisdictions have already enacted requirements and restrictions on the use of AI decision making tools in employee selection methods, on May 18, 2023, the EEOC updated its guidance on the use of AI for employment-related decisions, issuing a technical assistance document titled “Select Issues: Assessing Adverse Impact in Software, Algorithms, and Artificial Intelligence Used in Employment Selection Procedures Under Title VII of the Civil Rights Act of 1964” (“Updated Guidance”). The Updated Guidance comes almost a year after the EEOC published related guidance explaining how employers’ use of algorithmic decision-making tools may violate the Americans with Disabilities Act (“ADA”). The Updated Guidance instead focuses on how the use of AI may implicate Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, and national origin. Particularly, the EEOC focuses on the disparate impact AI may have on “selection procedures” for hiring, firing, and promoting.Continue Reading The Use of Artificial Intelligence in Employee Selection Procedures: Updated Guidance From the EEOC
On June 13, 2022, the Ninth Circuit Court of Appeals held in Johnson v. WinCo Foods Holdings, Inc, et al. that class members who were not yet employed by WinCo were not entitled to compensation for the time required to take a pre-employment drug test, nor was WinCo required to cover the travel expenses associated with undergoing the test.Continue Reading Time Is Not Always Money: Ninth Circuit Holds That Pre-Employment Drug Testing Is Not Compensable Under California Law
The federal government became the most recent employer to adopt a “Ban the Box” policy when The Fair Chance to Compete for Jobs Act became effective December 20, 2021. The law prohibits federal contractors and most federal agencies from inquiring into an applicant’s criminal history—including arrests and convictions—prior to making a conditional job offer. Therefore, federal contractors should review their applications and hiring practices to ensure they are complying with the recently-enacted law.
Continue Reading Ban the Box: Federal Government Adopts Fair Hiring Practice
The California Department of Fair Employment and Housing (“DFEH”) recently announced a new effort to identify and correct violations of the Fair Chance Act. The Fair Chance Act, which was enacted in January 2018 and is commonly known as California’s “ban-the-box” law, amended the Fair Employment and Housing Act (“FEHA”) to prohibit employers with five or more employees from directly or indirectly inquiring into, seeking the disclosure of, or considering an applicant’s conviction history (including questions on a job application) until after the applicant receives a conditional offer of employment. We previously summarized employers’ obligations under the Fair Chance Act here.
Continue Reading The Department of Fair Employment and Housing Ramps Up Enforcement of California’s “Ban-the-Box” Law
Employers began to rethink how they obtain authorization and retrieve background and credit checks for new employees after the Ninth Circuit’s decision in Gilberg v. California Check Cashing Stores, LLC, 913 F.3d 1169, 1177 (9th Cir. 2019), as we’ve previously discussed. However, lower California courts recently decided other issues surrounding background checks, such as the amount of time employees have to file a claim. These recent rulings suggest that the statute of limitations for an employee to file a claim for an alleged violation of federal and/or state background and credit checks laws can begin on the employee’s first day of work.
Continue Reading First Day on the Job and on Notice: When the Statute of Limitations Begins for Employer Background Checks
On July 31, 2019, Governor J.B. Pritzker signed a law prohibiting Illinois employers from asking job applicants or their previous employers about salary history.
The law amends the Equal Pay Act of 2003, which made it illegal to discriminatorily pay employees on the basis of sex or race. The impetus behind the new salary history amendment is an effort to close the gender wage gap. According to a news release from the governor’s office, women in Illinois earn 79% of what men earn.
Continue Reading Salary History Off-Limits Under New Illinois Equal Pay Law
Albert Einstein believed “Everything should be made as simple as possible, but not simpler.” The Ninth Circuit seems to agree. In Gilberg v. Cal. Check Cashing Stores, LLC, No. 17-16263, 2019 WL 347027 (Ninth Cir. Jan. 29, 2019), the Ninth Circuit held a single form combining nearly identical federal and state disclosures violates both federal and state laws. Employers who conduct pre-employment background checks must now provide applicants with two separate standalone forms: (1) disclosure and consent under Fair Credit Reporting Act; and (2) disclosure and consent under California’s Investigative Consumer Reporting Agencies Act (or other applicable state law). This decision applies to employees providing services in the Ninth Circuit (California, Arizona, Hawaii, Alaska, Idaho, Montana, Nevada, Oregon and Washington).
Continue Reading Complicating Simplicity: Ninth Circuit Requires Separate Stand-Alone Documents for Employment Background Checks
Many states and municipalities throughout the country have enacted laws that mandate the removal of criminal conviction history questions from job applications. This so-called “Ban the Box” movement theoretically provides individuals with criminal backgrounds the opportunity to obtain jobs for which they otherwise would not have been considered. But, these laws also provide additional burdens for employers and add additional ways for them to face liability.
Continue Reading “Ban the Box” Laws & Workplace Violence: An Employer’s Failure to Sufficiently Perform Background Checks Could Lead To Costly Negligence Liability
Following the Los Angeles minimum wage ordinance that was enacted earlier this year, the City of Los Angeles has now enacted another ordinance that will significantly impact employers doing business within city limits. On December 9, 2016, Mayor Garcetti signed into law the “Fair Chance” ordinance, which significantly limits the ability of Los Angeles employers to ask job applicants about criminal convictions.
Continue Reading Los Angeles Enacts “Fair Chance” Ordinance Prohibiting Criminal History Inquiries Prior To Conditional Offers Of Employment