Q: I heard New York City is adding height and weight as protected categories. What does that mean for employers?

A: Effective November 22, height and weight will be added as protected categories under the New York City Human Rights Law. Employers will be prohibited from discriminating against applicants or employees based on their height or weight. There are no definitions for height or weight, meaning these categories are like race or religion, and all ranges of height and weight are protected.Continue Reading NYC to Prohibit Employment Discrimination Based on Height and Weight

Published in Law360 on August 7, 2023. © Copyright 2023, Portfolio Media, Inc., publisher of Law360. Reprinted here with permission.

In a survey of 3,000 workers, 82% said they would consider quitting their job because of a bad manager.Continue Reading Water Cooler Talk: Insights From ‘The Bear’ on Right and Wrong Ways to Manage Employees

Q: Are there any risks to using AI to enhance diversity in the workplace?

A: The use of artificial intelligence (AI) has become increasingly prevalent in hiring decisions, particularly as a means to increase diversity in employment. In January 2023, the chair of the Equal Employment Opportunity Commission (EEOC) estimated that 83% of employers rely on artificial technology in decision-making. When used thoughtfully, AI tools can help employers more effectively analyze data and trends necessary to improving diversity, such as employee retention, pay inequality, and bias in job postings and hiring practices. For instance, generative AI platforms can enhance diverse employee retention by preparing career path guides specific to an employee’s skills and values, which allows diverse employees to view opportunities for internal career growth with transparency. Additionally, employers may use AI to assist in screening candidates during the recruiting process to avoid the unconscious biases that human screeners bring to the process. Despite the benefits and growing adoption of AI, however, the EEOC and the Biden administration have recently warned of the inherent risks that employers should be aware of when leveraging AI to enhance workplace diversity. Continue Reading Are There Any Risks to Using AI to Enhance Diversity in the Workplace?

Do companies that use workplace surveillance tools to make hiring and firing decisions risk violating the Fair Credit Reporting Act (FCRA)? According to the Consumer Financial Protection Bureau (CFPB or Bureau) in a recent comment, the answer to that question is yes. The Bureau’s official comment comes in response to a request for information issued by the White House’s Office of Science and Technology Policy on the impact of automated tools used by employers to monitor and evaluate workers. The CFPB’s position that the FCRA applies to automated worker surveillance tools is consistent with the Bureau’s March 2023 request for information on data brokers, discussed here, to determine whether the FCRA applies to modern data surveillance practices.Continue Reading CFPB Opines That Companies Using Automated Worker Surveillance Tools Must Comply with FCRA

Are you making the best hiring and firing decisions? Is improving employee engagement and retention a challenge? How can you use data to leverage and get the most out of your most valuable asset – your employees?

In Episode 2 of the Hiring to Firing Podcast, Troutman Pepper Partners Tracey Diamond and Evan Gibbs sit down with Spring International CEO Fiona Jamison to discuss the hit movie Moneyball and the use of people analytics in the workplace.Continue Reading What Can Moneyball Teach Us About People Analytics?

Q: I read that some major companies no longer drug test applicants for marijuana. What should our company consider as we conduct a review of our workplace drug testing policy for 2022?

A: It is true that a growing number of companies appear to be eliminating workplace drug testing. There are two major reasons: expanding marijuana legalization and the pandemic-era labor shortage.

Continue Reading Change in the Wind: Time for Employers to Review Their 2022 Workplace Drug Testing Policies

Q: What new employment laws impact Oregon employers?

A. The employment law landscape is shifting in Oregon, with this year’s legislative session bringing several noteworthy changes to the state’s employment laws. In this blog post, we explore some of the more significant changes passed in 2021 and forecast what may come our way in the months ahead.Continue Reading Oregon Employment Law Update

Q. My company wants to improve our hiring process to help avoid costly errors that may lead to potential discrimination claims. What best hiring practices do you recommend?

A. Hiring new employees — whether high school and college students looking for part-time work or recent graduates entering the workforce — can be challenging. One possible risk is that a job applicant could claim unlawful discrimination based on your decision not to hire that applicant, even if the claim is not valid. We offer the following helpful tips to consider as you conduct the hiring process:Continue Reading Hiring Best Practices to Avoid Potential Discrimination Claims

* Michael T. Byrne is a 2021 summer associate at Troutman Pepper. He is not admitted to practice law.

Q: Are California employers required to rehire employees they laid off for reasons related to the COVID-19 pandemic?

A: Yes, but only if the employer falls within certain industries and establishes an open job position for which one of its laid-off employees is qualified. Under California’s Senate Bill No. 93 (SB 93), if a covered employer opens a job position and has previously laid off workers due to reasons related to the COVID-19 pandemic, the employer must first offer the position to eligible laid-off employees within five days of establishing the position.Continue Reading California Provides Right to Recall to Certain Employees Laid off Due to COVID-19

* Sean M. Craig is a 2021 summer associate at Troutman Pepper. He is not admitted to practice law.

Q: Does Philadelphia have any laws regulating drug testing for marijuana? 

A: Philadelphia recently passed an ordinance that prohibits employers from requiring “a prospective employee to submit to testing for the presence of marijuana in such prospective employee’s system as a condition of employment.” The ordinance will take effect on January 1, 2022, and applies to any person doing business in the city who employs one or more employees.

The ordinance does not prohibit pre-employment testing of certain types of employees, including police and other law enforcement positions, any position requiring a commercial driver’s license, and any position that requires the supervision or care of children, medical patients, disabled people, and other vulnerable persons. Also, there are exceptions from the pre-employment testing prohibition, for instance, where drug testing would otherwise be required by applicable law, including a federal or state statute or regulation; where the federal government requires testing as a condition of the receipt of a contract or grant; or where testing is pursuant to a valid collective bargaining agreement.
Continue Reading New Philadelphia Ordinance Prohibits Pre-Employment Marijuana Testing