I-Robot: EEOC Issues AI Guidance 

By Sarah Ferguson

More employers are using artificial intelligence (AI) in selection procedures. Such use may include, for example, culling through applications for a given job, using video interviewing software and selecting the preliminary round of interviewees. However, few employers realize their potential Title VII exposure for relying on AI for these types of employment decisions. Though cost efficient, employers should carefully evaluate the methodologies employed by AI vendors before using them in selection procedures.

Stepping into the AI fray, the Equal Employment Opportunity Commission (EEOC) issued guidance on the use of AI for employers’ selection procedures (hiring, promotions and firing) earlier this summer. Specifically, the EEOC assessed whether employers may be liable for any disparate impact on a particular protected group caused by AI. Title VII prohibits (among other things) discriminatory actions by employers against applicants and employees on the basis of race, color, sex, national origin, pregnancy, sexual orientation, gender identity, disability, age and genetic information. Employers’ policies or practices may be found to have a disparate impact if they appear to be neutral but adversely affect a protected class of people more than another group.

Potential Title VII Liability for AI

According to the EEOC, an employer may be liable for the disparate impact caused by AI in this context, even if the AI was developed by an outside vendor. Thus, it is in the employers’ best interest to inquire of any AI vendors “whether steps have been taken to evaluate whether use of the tool causes a substantially lower selection rate for individuals who are protected by Title VII.” The employer also has a responsibility to independently assess whether use of the software results in a selection rate for a class of protected individuals that is “substantially less” than other individuals.

Four-fifths Rule Applied to AI

To illustrate the selection rate bias, the EEOC explained the Four-fifths “rule of thumb” via following hypothetical:

For example, suppose that 80 White individuals and 40 Black individuals take a personality test that is scored using an algorithm as part of a job application, and 48 of the White applicants and 12 of the Black applicants advance to the next round of the selection process. Based on these results, the selection rate for Whites is 48/80 (equivalent to 60%) and the selection rate for Blacks is 12/40 (equivalent to 30%). 

The Four-fifths Rule says that the selection rates for Black applicants in this hypothetical is “substantially different” than the selection rates for White applicants, which could be evidence of discrimination.

Importantly, the EEOC was careful to emphasize that compliance with the Four-fifths Rule was not itself dispositive of compliance with Title VII. Though the Four-fifths test is “easy to administer” and may be used to draw an “initial inference” about selection rates, Courts have agreed that there may be situations where the Four-fifths test is not appropriate, “especially where it is not a reasonable substitute for a test of statistical significance.”

Given this context and the possible implications for employers, the EEOC encouraged “employers to conduct self-analyses on an ongoing basis to determine whether their employment practices have a disproportionately large negative effect on a basis prohibited under Title VII or treat protected groups differently.”

New Do: USCIS Issues New Form I-9s 

By Sarah Ferguson

U.S. Citizenship and Immigration Services (USCIS) announced that commencing Aug. 1, 2023, a new, streamlined Form I-9 will be available for employers. Employers will be required to transition to the new form no later Oct. 31, 2023, or face penalties for improperly maintaining Form I-9s.

According to the USCIS: “The newly updated Form I-9 contains myriad revisions to the form and its instructions to streamline these materials and reduce employer and employee burden associated with the form.”

Specifically, the agency has made the following changes to the form:

  • Shorter Sections: Reduced Sections 1 and 2 to a single-sided sheet.
  • Standalone Certification (Supplement A): Moved the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary for separate completion by the employee.
  • Reverification/Rehire (Supplement B): Moved the Section 3 Reverification and Rehire area to a separate, standalone supplement that employers can print if or when rehire occurs or reverification is required. Employers may attach additional supplement sheets as necessary.
  • Revised Terminology: Removed use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work” as well as clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
  • Mobile accessibility: Ensured the form can be filled out on tablets and mobile devices. Removed certain features to ensure the form can be downloaded easily.
  • Anti-Discrimination Instructions: Updated the notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.

Alternative procedure checkbox: Added instructions for use of the new checkbox for employers who choose to examine Form I-9 documentation under an alternative procedure.

Ride into the Sunset: The End of DHS’s COVID-19 Flexibility Policy for I-9s

By Sarah Ferguson

These changes coincide with the end of the Department of Homeland Security’s (DHS) flexibility policies that were instituted in March 2020 in response to the COVID-19 pandemic. The policy allowed employers whose workforce was working remotely to defer physical inspection of employment eligibility documents required by Form I-9. Instead, the policy allowed employers to conduct virtual inspections of these documents until a date in the future when the employer could verify the documents in person.

The DHS has now set the date for physical inspection as July 31, 2023. After that date, employers must verify in-person all identity and employment documents for new hires, even if the employees are not reporting to a physical location. Additionally, employers who have been utilizing the remote flexible option for I-9 verification as permitted by DHS must complete a physical inspection of identity and employment eligibility documents by Aug. 30, 2023. Following the physical inspection of I-9s already on file, the I-9 must be annotated accordingly.

In August 2022, DHS issued a proposed rule that “would create a framework under which the Secretary of Homeland Security (the Secretary) could authorize alternative options for document examination procedures with respect to some or all employers.” In its press release on the sunsetting of the flexibility policy, DHS noted that it expects to “issue a final rule later this year.” Though the new Form I-9 contains a check box for these policies, the DHS has yet to issue the new rule.

Employers should conduct an I-9 audit and verify that all employment eligibility documents of employees hired since March 2020 have been verified in person. Additionally, employers should ensure all policies are up-to-date. It may also be an opportune to ensure all HR personnel are trained on conducting I-9 verifications.

Ones to watch: Casino workers allegedly not Wynning

By Sarah Ferguson

A putative class action brought by a former slot attendant against Wynn Las Vegas (Wynn) was recently removed to federal court. See Little v. Wynn Las Vegas LLC, Case No. 2:23-cv-01150. Plaintiff alleges that Wynn engaged in unlawful tip pooling and tip sharing arrangements, which included requiring tipped employees to share 5-15% of their tips with management. The complaint asserts the tipped employees were forced to share their tips with managers as a condition of their employment.

According to Plaintiff, Wynn’s actions violated Fair Labor Standards Act (FLSA), which prohibits employers from keeping any portion of their employees’ tips, including allowing managers or supervisors to keep any portion of employees’ tips.

At this stage in the case, Wynn’s tipping policies have yet to be verified, but other employers in the Nevada entertainment industry may want to keep a close eye on this case to ensure their own policies are compliant with FLSA as interpreted by Nevada federal courts.

Utah Courts Provide Forms and Instructions for Workplace Violence Protective Orders

Thanks to the advocacy of Salt Lake SHRM and Utah SHRM, the Utah Legislature passed House Bill 324 Workplace Violence Protective Orders Amendments during the 2023 legislative session. This Bill allows employers to seek a judicial protective order against an individual who has engaged in workplace violence or threatened to do so. Specifically, a judge may enjoin an individual from threatening an employer or its employees and to keep away from the workplace. Although the Bill was signed into law months ago, it had a delayed effective date of July 1 to allow Utah Courts time to develop forms and processes. That work is complete. The Utah Courts have created a webpage with instructions for employers and links to the required forms. You’ll find those instructions and forms here: Utah Courts - Workplace Violence Protective Order Webpage.

Question Corner

By Jason R. Mau and Nickie Hardesty

State Maternity Leave and the FMLA

Q.  If our employees are eligible for Family and Medical Leave Act (FMLA) leave for childbirth, do they get both 12 weeks of federal leave and the additional state maternity leave?

A.  The FMLA requires employers to provide 12 weeks of unpaid leave to eligible employees for the birth and care of a newborn child. However, state law may require an employer to provide more than 12 weeks of leave. For example, in the District of Columbia, employees can take up to 16 weeks for family leave. State and local laws providing longer periods of leave are not superseded by the FMLA. Employers must comply with both the FMLA and state family leave law. If an employee is covered by both the FMLA and state leave law, the employee is entitled to take whichever leave is more beneficial to them. When an employee takes leave that is covered by both the FMLA and state leave law, the leave time counts against both laws simultaneously, i.e. an employee cannot take 12 weeks of FMLA leave and subsequently take an additional 12 weeks of state leave. The 12 weeks of leave would count towards both the allotted state leave time and FMLA leave time. However, the relevant state leave law and FMLA may provide different qualified leaves, which would allow the employee to take both leaves separately. For example, state law may provide leave for circumstances not covered by the FMLA, such as caring for a sick grandparent. In this scenario, leave taken under the relevant state law would not count towards the employee’s allotted leave time under the FMLA.