Hunton Employment & Labor Perspectives

Imagine a future in which Artificial Intelligence (“AI”) does the recruiting and hiring at U.S. companies.  Every new hire will be the uniquely perfect candidate whose skills, personality, presence, temperament, and work habits are a flawless match for the job.  Performance management and poor performance become extinct, relics from an age in which humans brought primitive instincts, biases, and flawed intuition to hiring and employment decisions.  While there are risks and challenges to employers in introducing this technology, manufacturers of AI software say that some version of that future may not be too far off.  AI software such as Mya, HireVue, and Gecko are among the numerous platforms that employers are now leveraging to hone in on and hire the best candidates more quickly. Generally speaking, AI interviewing products combine mobile video interviews with game-based assessments. The AI platform then analyzes the candidate’s facial expressions, word choice, and gestures in conjunction with game assessment results to determine the candidate’s work style, cognitive ability, and interpersonal skills.

As originally reported on the Hunton Retail Law Resource Blog, the US Chamber of Commerce, along with two other business-oriented groups, filed an amicus brief urging the Ninth Circuit to overrule a $102 million judgment against Wal-Mart.

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Boston Labor & Employment partner, Christopher M. Pardo, was recently recognized as a Massachusetts Super Lawyer, along with four other litigation lawyers in our Boston office.   Congratulations to Chris, Martin F. Gaynor III, Harry L. Manion III, Michael R. Perry, and Brian J. Bosworth.

As discussed on the Hunton Retail Law Resource blog on November 5, 2019, for the past few years, retailers have been confronted with a tidal wave of litigation alleging that their websites are inaccessible in violation of the Americans with Disabilities Act (ADA).  Indeed, in 2018 alone, one analysis determined that there were at least 2,258 web accessibility cases filed in federal court, a 177 percent increase from the previous year.

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Last week, a federal judge in the Eastern District of Michigan granted Domino’s Pizza, Inc.’s motion to dismiss, holding that workers operating under the Domino’s brand must arbitrate their claims that the pizza chain made its franchises promise not to hire each other's employees, then misled the public to believe no such agreement existed.

Earlier this year, we wrote about a proposed bill in California, AB 51, which would prevent employers from requiring their employees to bring all employment-related claims, including discrimination, harassment, retaliation, and wage and hour claims, in arbitration instead of state or federal court.  Earlier this month, Governor Newsom signed AB 51 into law.

This month, California Governor Gavin Newsom signed several employment-related bills into law. The laws go into effect January 1, 2020, and include an extension to the deadline to file certain state discrimination claims and address harassment training and prevention, as well as mandatory arbitration agreements.

As we blogged about earlier this year, a U.S. District Court in Washington, D.C., in April ordered the EEOC to collect two years’ worth of EEO-1 Component 2 pay data from mid-size and large employers by a deadline of September 30, 2019.  In its most recent status report on the subject, however, the agency revealed it did not collect enough data to satisfy the judge’s response criteria, having received submissions from only 39.7% of eligible employers.  Perhaps unfortunately for employers, the EEOC said it will continue accepting compensation data for reporting years 2017 and 2018 until it satisfies the court’s criteria that Component 2 data “be equal to or exceed the mean percentage of EEO-1 reporters” that turned in EEO-1s in each of the past four years.  On its official website, the EEOC encourage all employers to “submit their data as soon as possible.”

The IRS has issued final regulations amending the hardship distribution rules for qualified retirement plans, including 401(k) and 403(b) plans. The final regulations are substantially similar to the proposed regulations that were issued in November 2018, but provide a few clarifications.  Plans that have been complying with the proposed regulations will satisfy the final regulations.  Below is a summary of the key changes and action items for plan sponsors.

The U.S. Supreme Court declined to hear a case on October 7 that likely would have clarified the scope of Title III of the Americans with Disabilities Act (the “ADA”) related to the operation of virtual platforms like websites and applications by private businesses.