Law Offices of Stanley E. Niew, P.C.
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LABOR & CONSTRUCTION LAW UPDATES
These Newsletters are not intended as legal advice since each situation depends specifically on the facts presented. Persons reading these Newsletters should seek competent legal advice with regard to the subjects contained herein before making any employment or other decisions.
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JUNE 2022
Inside This Issue
1. Online Employment Interviews
2. EEOC Guidance Requires Monitoring for Disabilities
3. What Evidence Demonstrates a Violation of FMLA Leave?
4. New Decision Gives Regional Directors Ability to Hold Election Abeyance When it Finds Merit to a Pending ULP
Online Employment Interviews
Virtual interviewing is on the uptick and companies using such video conferencing platforms need to consider potential risks.
Make certain that businesses located in Illinois comply with the Artificial Intelligence Video Interview Act requiring businesses to notify applicants that artificial intelligence (AI) technology is used to evaluate applicants and obtain an applicant’s consent to be evaluated through AI technology. If you are interviewing a candidate outside of Illinois you must add disclosures required by applicant’s home state.
When recording interviews take the time to obtain written consent of all parties to the interview which include the job candidate and the employee conducting the interview.
If collecting biometric information through AI technology such as facial features, finger prints or voice prints, be sure to obtain permission to collect such data since Illinois has one of the strictest biometric laws in the country. If you use a vendor to collect biometric data, it is imperative that your company is aware of exactly what the vendor is collecting on the company’s behalf.
Interview recordings often contain personal information, resumes and questionnaires which must be properly protected, and which should include protection from cyber-attacks.
If you are considering new technology for interviews you are strongly urged to develop strict policies, terms and disclosures with an eye on review of the policies at least quarterly.
EEOC Guidance Requires Monitoring for Disabilities
New EEOC guidance mandates employers to ensure that all hiring tools based on AI or algorithms do not negatively impact applicants with disabilities. This of course would include reasonable accommodations in hiring practices which incorporate AI or algorithmic decision-making.
AI based hiring tools can evaluate resumes based upon key words that are often used. Video interviewing software can evaluate applicant performance or even test for desired applicant characteristics or skills.
The guidance cautions that these tools can violate the Americans with Disabilities Act by failing to provide reasonable accommodations or it can screen out an individual with a disability by preventing the applicant from meeting selection criteria due to a disability.
The guidance provides practical steps that reduce chances that algorithmic decision-making will screen out applicants with a disability by:
- Informing applicants reasonable accommodations are available;
- Providing other testing if applicant has previously scored poorly due to a disability;
- Informing applicants about algorithmic hiring tools used; and
- Select and design algorithmic evaluation tools designed to give accessibility for individuals with disabilities.
The guidance is a part of EEOC’s Artificial Intelligence and Algorithmic Fairness Initiative.
What Evidence Demonstrates a Violation of FMLA Leave?
In a case decided June 1, 2022, a Federal Appellate Court reviewed a decision of a district court denial of plaintiff request to proceed on his FMLA interference claim because he could not show actual denial of FMLA benefits. The Appellate Court found that plaintiff need not show actual denial of benefits to proceed on an interference claim since an alleged threat of discipline if plaintiff used more FMLA leave qualified as interference with FMLA rights.
The Appellate Court further stated that the defendant’s representatives alleged statement prejudiced him by affecting his decision about seeking FMLA leave is not an important factor.
The Appellate Court affirmed the district court ruling that the plaintiff did not state a valid claim for retaliation for discussing FMLA leave through constructive discharge where the plaintiff could only speculate as to whether his termination was emanate at time of his resignation and where Plaintiff had not formerly requested FMLA leave.
New Decision Gives Regional Directors Ability to Hold Election Abeyance When it Finds Merit to a Pending ULP
In a NLRB decision decided on June 15, 2022 in Rieth-Riley Construction Co., Inc., the NLRB Board ruled that the Board’s current election-procedure rules, adopted in 2020, continue to permit merit-determination dismissals of election petitions, despite changes in the Board’s blocking-charge policy.
The Board held that when an unfair labor practice charge alleges conduct that would interfere with employee free choice in a representation election, and a Regional Director determines after conducting an administrative investigation that the charge has merit and should be prosecuted, the Regional Director may dismiss a pending election petition.
The Board distinguished merit-determination dismissals from cases in which, prior to the 2020 changes in the rules, a Regional Director could block an election, based on a pending unfair labor practice charge that had not yet been reviewed.
A majority of the Board found that in this case, the Regional Director had properly dismissed a decertification petition, after finding merit in unfair labor practice charges. While agreeing that the merit-determination dismissal procedure remains available to Regional Directors, other Members dissented on the grounds that an evidentiary hearing should be required.
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