The New York City Council recently enacted an ordinance banning artificial intelligence (“AI”) in employment decisions unless the technology has been subject to an independent bias audit within a year of use.

Many employers have been using AI in employment decisions for years without regulation. This technology can range from algorithms finding ideal candidates to software used to asses a candidate’s performance during screening interviews. While AI tools promote efficiency, reduce costs, and can help employers make informed decisions, technology can run afoul of discrimination laws by reinforcing bias or screening out candidates of protected classes.

The law, which takes effect on January 1, 2023, bans such unregulated practices in New York City by requiring employers to obtain an independent audit of their automated tools within a year of use. Employers will be required to make the results of the audit publicly available on their websites.

Additionally, employers must notify candidates who reside in New York City within 10 days of using automated tools and detail the job qualifications and characteristics that the tool will use to assess the candidate. Employers that do not comply will be subject to a $500 fine for the first violation, and a $1,500 fine for each subsequent violation. The penalty will then be multiplied by each day that the issue is unresolved.  These penalties can add up quickly, making it crucial for employers to review their automated employment tools before the law takes effect.

There are unanswered questions that the City needs to address for a smooth implementation of this law. The law does not specify the independent people or agencies qualified to perform a “bias audit,” although many larger employers have been validating similar types of pre-employment tools prior to use for years.

Although the City’s Office of the Corporation Counsel is authorized to bring a lawsuit to address violations of the new law, private lawsuits by aggrieved parties are not expressly permitted. The law is silent about whether class action lawsuits could be filed, it is likely that the new law would promote the filing of such lawsuits to the extent that the AI tools would be used in accordance with uniform policies and practices.

While NYC has not issued guidance at this time, it is likely that more direction will be issued before the law takes effect in January 2023. We will keep you informed of further developments.

For more information, contact Sal Gangemi.

In March 2022, Governor Kathy Hochul signed legislation amending the New York State Human Rights Law to establish a sexual harassment hotline directly to the New York State Division of Human Rights (NYSDHR). The hotline (800-HARASS-3), which is now active, is intended to be staffed by pro bono lawyers experienced in counseling individuals on sexual harassment. Contact with the hotline does not constitute the filing of a harassment complaint, and individuals intending to file a complaint with the NYSDHR would still be required to follow existing procedures for doing so. Continue Reading New York Workplace Sexual Harassment Hotline Now Operational

Earlier this month, the New York State Senate passed a pay transparency bill similar to a New York City law passed last November. We wrote about the New York City law here and here. Senate Bill S9427A would apply to employers with four or more employers, but not to temporary employment firms. Like the New York City law, the bill would require employers to provide a “range of compensation” for positions that can or will be performed in New York State. The bill defines “range of compensation” to mean “the minimum and maximum salary or hourly range of compensation for a job, promotion, or transfer. . . that the employer in good faith believes to be accurate at the time of the positing.” The bill also imposes recordkeeping requirements, and civil penalties for violations. Continue Reading New York State Senate Passes Bill Requiring Disclosure of Compensation Ranges for Jobs to Employees and Applicants

On May 17, 2022, Connecticut Governor Ned Lamont signed into law the so-called “captive audience” bill (Senate Bill 163), which prohibits employers from requiring their employees to (a) attend employer-sponsored meetings that have a primary purpose of communicating the employer’s opinion concerning religious or political matters, or (b) listen to speech or view communications that have a primary purpose of communicating the employer’s opinion regarding religious or political matters.  The law goes into effect on July 1, 2022. Continue Reading Connecticut Governor Signs Law Prohibiting Employer-Employee “Captive Audience” Communications

On January 15, 2022, New York City Council adopted a local law requiring covered employers with four or more employees to include salary ranges for open job positions beginning on May 15, 2022. For more information on the Local Law, see our original blog post here. On April 28, 2022, the City Council adopted an amendment to the Local Law, moving the effective date to November 1, 2022.

Continue Reading New York City Council Amends Wage Transparency Law

On March 22, 2022, the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) partially reopened the comment period to allow for additional public comment on specific topics covered by its proposed final standard to protect healthcare workers from workplace exposure to COVID-19. Continue Reading OSHA Seeks Comments on Proposed Final Rule Protecting Healthcare Works from Occupational Exposure to COVID-19

On March 3, 2022, President Biden signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021” (the “Act”).  The Act, which takes effect immediately, amends the Federal Arbitration Act (the “FAA”) by narrowing both its scope and applicability. Specifically, the Act prohibits employers from forcing employees to settle sexual misconduct claims in closed-door arbitration venues. Continue Reading The End of Forced Arbitration in Sexual Misconduct Cases

On January 15, 2022, the New York City Council adopted an amendment to the New York City Human Rights Law (NYCHRL), requiring covered employers to include salary ranges for positions open to prospective or current employees.  Employers with four or more employees (including independent contractors) are covered by the law.  The new Local Law, which takes effect on May 15, 2022, expands upon a 2017 amendment that barred employers from inquiring about a prospective employee’s “salary history.” Continue Reading New York City Enacts Law Requiring Employers to Provide Salary Ranges in Job Advertisements

On January 25, 2022, the Connecticut Supreme Court ruled that local fitness centers violated Connecticut’s nondiscrimination statute by maintaining a separate workout area for women only. Continue Reading “Women-Only” Workout Areas Violate Connecticut Discrimination Laws

On January 13, 2022, the United States Supreme Court issued its highly anticipated decision blocking the Biden administration from enforcing an Occupational Safety and Health Administration (“OSHA”) rule mandating vaccine-or-testing for large businesses. Continue Reading Supreme Court Blocks Enforcement of OSHA Vaccine-or-Testing Mandate