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This summer, the U.S. District Court for the Southern District of Illinois further bolstered Illinois’ Biometric Information Privacy Act’s (BIPA) nearly unfettered private right of action in Lewis v. Maverick Transportation. In a simple but firm four-page ruling, Judge Rosenstengel denied the defendant’s motion to dismiss, holding that a cause of action under BIPA does not require a plaintiff to plead that data collected is used for identification purposes. The ruling serves to highlight the apparent lack of any real technical defenses to the statute — making it imperative that companies focus on strict compliance before they find themselves in court.Continue Reading Illinois Court Eliminates Another BIPA Defense

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?

Q: Does the federal Pregnant Workers Fairness Act (PWFA) require workplaces to change their accommodation and leave practices in a significant way?

A: Potentially. The PWFA requires covered employers to provide “reasonable accommodations” to a worker’s known limitations related to pregnancy, childbirth or related medical conditions unless the accommodation will cause the employer an “undue hardship.” While 46 states offer some protection to pregnant employees, 26 states already have laws that have requirements that mirror the PWFA. Workplaces that do not already have accommodations for pregnant workers in place must change their accommodation policies to comply with the new law that went into effect on June 27.Continue Reading Accommodation Requirements for Pregnant Employees Are Similar to ADA Protections

Q. As part of the employee onboarding process, my company requests that employees sign several documents, including an arbitration agreement and confidentiality agreement, on the first day of employment. Is the arbitration agreement enforceable?

A. In the famous words of all attorneys, it depends. Even if an arbitration agreement is otherwise enforceable, California courts may consider terms of other documents presented with the arbitration agreement to render the arbitration agreement unconscionable and unenforceable.Continue Reading California Court of Appeal Holds That Onboarding Documents Affect Enforceability of Otherwise Valid Arbitration Agreement

Q: Are student athletes considered employees under the Fair Labor Standards Act (FLSA)?

A: Not under current law, but it is widely suspected that before long, courts will deem at least some types of student athletes to be employees under the FLSA. Courts determine whether an employment relationship exists under the FLSA by looking at whether the “economic realities” of the relationship are consistent with employment (although there is no agreement among the circuit courts of which test best determines these economic realities). In the 2021 decision NCAA v. Alston, the Supreme Court characterized student athletes as participants in a labor market for purposes of federal antitrust laws. The Alston opinion left little reason to doubt that the Court would arrive at the same conclusion when considering the “economic reality” of student athletes as employees under the FLSA. The bigger question is where the Court will ultimately draw a line to separate student athlete-employees from truly amateur sports. The Third Circuit is currently considering an appeal that raises this very question, which may be the vehicle by which this appears before the Supreme Court.Continue Reading Are Student Athletes Considered Employees Under the Fair Labor Standards Act?

Most companies know that they can’t demote or fire an employee because of their race or religion. But how can companies avoid making decisions based on unconscious bias? Partners Tracey Diamond and Evan Gibbs sat down with CyberRisk Alliance VP of People Ying Wong to talk about the popular Netflix show Partner Track, workplace diversity, and unconscious bias.Continue Reading Unconscious Bias and Netflix’s Partner Track

Q. Have there been any updates since the federal court previously determined that the employer did not violate Title VII in prohibiting employees from wearing Black Lives Matter and other social justice attire to work?

A. Yes. In a prior blog post, we discussed companies taking various approaches toward employees wearing Black Lives Matter (BLM) attire to work during the pandemic. Some employers permitted such attire at work, while others did not. We also discussed a federal district court decision that addressed a novel issue — whether a claim under Title VII of the 1964 Civil Rights Act premised entirely on wearing BLM attire is legally cognizable.Continue Reading Chapter Two: Federal District Court Again Finds Employer Did Not Violate Title VII in Prohibiting Black Lives Matter Attire

Q. How do I fight antisemitism in the workplace?

A. The recent headlines involving Ye, Kyrie Irving, Dave Chappelle, and others are just the latest in a string of highly disturbing antisemitic statements and incidents. In 2021, the Anti-Defamation League (ADL) recorded 2,717 antisemitic incidents throughout the United States — a 34% increase from 2020 and the highest number on record since ADL first began tracking antisemitic occurrences in 1979. As many as 1,496 antisemitic acts have been reported in this calendar year alone, ranging from the distribution of antisemitic propaganda to physical attacks against Jewish individuals to bomb threats.

Continue Reading Combatting an Increase in Workplace Antisemitism

California employers face an abundance of new employment laws set to take effect at the start of the new year. Below find descriptions of new requirements for employee leaves of absence, pay transparency and data reporting, COVID-19 compliance, privacy rights, industry-specific requirements, and other new workplace laws. Unless otherwise stated, the obligations created by the laws below will take effect on January 1, 2023. Learn more about these and other employment developments at Troutman Pepper’s upcoming December 8 Labor + Employment webinar.Continue Reading Overview of New California Employment Laws