As U.S. employers navigate pandemic-related changes to the workforce, leaders face new challenges, including the questions of requiring COVID-19 vaccinations and tracking employee vaccination status.
According to Littler, employers are taking a cautious approach, with concerns about worker privacy. According to U.S. Equal Employment Opportunity Commission (EEOC) guidance, employers are able to mandate vaccines in most cases, but they must provide accommodations for employees who cannot receive the vaccine because of certain medical conditions or sincerely held religious beliefs. However, few employers are mandating the vaccine.
When it comes to tracking employee vaccination status, employers are taking a mixed approach, with 41% of respondents to the Littler survey saying they will ask workers to voluntarily disclose their vaccination status, 32% saying they won’t ask and 27% saying they aren’t sure.
Employers who are asking should take care in their approach. Tracking employee vaccination status can help employers determine whether workers need to wear masks or if they can increase capacity in offices, but employers should be cautious in asking follow up questions about why a person has not gotten the vaccine. According to SHRM, questions about why an employee is not vaccinated could be subject to Americans with Disabilities Act (ADA).
If employers do ask vaccination status, they have a few options for tracking. Some employers are relying on the honor system, some require an employee to sign an attestation saying they have been vaccinated and others have formal tracking systems.
There is also a patchwork of local laws, and employers should consult an attorney to determine if any apply in their jurisdiction. For example, Santa Clara County in California requires employers to verify vaccination stats with repeated follow up for those who are unvaccinated. Others, in Oregon, require at least an attestation. Additionally, laws are pending in some states that would prevent private employers from verifying employee vaccination status.
The patchwork of compliance laws across North America is complicated and constantly changing. That, combined with increased employment class-action litigation, leaves employers facing extraordinary risk. We constantly see major new developments when it comes to employer compliance. The landscape is constantly shifting, and regulations vary from one location to the next. From the momentum of the campaign to ban the box to the patchwork of marijuana laws, a lot of changes are taking place in worksites across the country.
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People have always sought out new employment opportunities by convincing someone that they are the best choice. While the art of persuasion has not changed, technology and customs have shifted rapidly since the days of papyrus, vellum and fax machines; what was once strange and new becomes the norm, while the tried and true seem outdated.
For instance, going door to door with the classifieds in search of work seems as absurd now as recording a video interview on your phone would have been just a few years ago. As technology matures and hiring practices change, it’s important for employers to understand the new solutions being put into place.
This article explores video interviewing and related technologies and some of the legal implications to keep in mind before implementing a new tool as part of your hiring and recruitment process. Please note that this article does not constitute legal advice and does not establish an attorney-client relationship. If you need legal advice, please contact an attorney directly.
Benefits of Video Interviewing
The most common form of video interviewing, and the subject of this article, is asynchronous or one-way interviewing. The candidate records answers to a series of predetermined questions on a laptop or smart device as part of the initial screening process. The recruiter or hiring manager is then able to review the candidate’s video and see how the questions were answered. There are a number of advantages to this approach to the hiring process.
PeopleScout’s Affinixtm
The video interview and digital assessment capabilities of PeopleScout’s proprietary talent technology, Affinix, provides our clients with a clearer picture and more insight into potential employees. This simplifies the screening process, allowing PeopleScout to share top candidates with hiring managers faster. The video interview process embedded within the Affinix platform is easy to use:
Your team creates the questions you want candidates to answer.
You can choose a combination of video, multiple choice or essay-style questions as part of an assessment.
Candidates respond to your questions just like they would in a face-to-face interview; the only difference is that the responses are recorded and stored for you to review.
Your team evaluates, reviews and rates responses when convenient.
Because responses are recorded, your team can go over answers as many times as needed, allowing for a more careful analysis of candidate responses than traditional, face-to-face interviews.
Built on the Amazon cloud (AWS – Amazon Web Services), Affinix is a stable and secure platform. All information is secured in the AWS cloud for you to access at your convenience. Using the digital interview capabilities of Affinix is a great way to replace or supplement telephone or first-round interviews.
Larger Candidate Pool
The hiring manager is able
to review the interviews of a much larger pool of potential candidates. While a
traditional interview might only be extended to the top five candidates, video
interviewing allows the hiring manager to review every candidate who meets
their other screening requirements. Additionally, candidates are not restricted
to local markets, as interviews can be recorded from any location.
Consistency
The questions asked in the
interview are consistent for all applicants. This allows for clear comparisons
in responses. Furthermore, recording a set of pre-determined questions prevents
interviewers from getting sidetracked or asking inappropriate or illegal
questions during the interview. Finally, other decision-makers in the hiring
process don’t need to rely on the impressions of the interviewer because the
videos are available for review by multiple people.
Speed
Screening speed can
increase with video interviewing because there is more flexibility for hiring
managers. All questions are preset, so interviewers don’t need to spend time
preparing for multiple individual interviews or coordinating schedules. Because
the interviews are recorded, they can also be screened in batches and at convenient
times for the reviewer.
Legal Implications to
Keep in Mind
The advantages of video
interviewing and other emerging technologies help promote a more consistent
process that gives a greater number of candidates the opportunity to present
themselves for consideration. However, the use of video interviewing technology
does not absolve companies from their legal obligations in the hiring process
from the risk of discriminatory practices; related technologies may even
increase these risks. Companies should check with legal counsel, as well as
human resources and information security experts, before adopting new hiring
practices or technologies.
Emerging Technologies & Non-Discrimination
Video interviews have been around for a while. But, as they grow more common, new technologies emerge to complement them. One such technology is AI-assisted assessments, which use computers to analyze responses, facial gestures, intonations and other displayed characteristics and screen out applicants that fail to meet the requirements of the specific algorithm. While technology that can prevent the hiring manager from having to even physically watch the interview has a powerful allure, AI-assisted assessments are not yet proven to be effective or non-discriminatory. For instance, a large online retailer encountered the unintended consequences of AI screening out protected classes of employees and determined that such solutions are not yet feasible. Plus, privacy advocates have requested government investigations into the secret algorithms used by a provider of AI-assisted interview technology. And, in the U.S., states are starting to look critically at AI-assisted hiring, with Illinois leading the way with new legislation.
In the U.S., the Equal
Employment Opportunity Commission (EEOC) allows for video interviewing, but the
rules against non-discrimination in hiring and employment do not change. Meanwhile,
record-keeping requirements apply equally to video interviews; if a candidate
has a disability that prevents them from providing a video interview, the
employer must provide an alternative method of applying. And, while it is not
illegal to learn of an applicant’s disability, such knowledge cannot be used to
discriminate against that applicant.
Technology cannot
eliminate human prejudices, and there will always be a risk of discriminatory
behavior by bad actors. However, this risk can be mitigated to some degree by
good processes, which can include video interviewing for the reasons set forth
above.
International Considerations
Internationally, the European Union has one of the most expansive digital privacy laws in the world. The General Data Protection Regulation (GDPR) protects the data of EU citizens, giving them a broad array of rights including the “right to be forgotten.”
The regulation, which
became official in May 2018, requires companies that recruit and process job
applicant data to reveal all of the information it has on file about an
individual when asked by the candidate. Under the GDPR, companies must rectify
any inaccuracies and, at the candidate’s request, delete the information within
30 days.
The GDPR applies to all
companies recruiting Europeans – regardless of whether the company itself is
inside or outside EU borders. Fines for non-compliance to GDPR can amount up to
a staggering €20M ($22.2 million U.S. dollars), or 4% of a company’s global
revenue, whichever is higher.
What’s more, in Australia, before an Australian Privacy Principal (APP) entity discloses personal information to an overseas recipient, the entity must take reasonable steps to ensure that the overseas recipient does not breach the APPs in relation to the information (APP 8.1).
An APP entity that
discloses personal information to an overseas recipient is also accountable for
any acts or practices of the overseas recipient in relation to the information
that would breach the APPs (s 16C).
New technology will not eliminate the need for employers to have a compliant hiring process or absolve them from decision-making. But, carefully selected solutions like asynchronous video interviews can bring significant advantages for both hiring managers and potential employees. With more candidates able to apply and a more consistent experience for both sides, video interviews can benefit everyone.
Throughout 2019, we’ve covered some of the biggest compliance issues impacting employers. New legislation took effect across the world, and the courts weighed in on important issues. As 2019 comes to a close, here are some of the biggest topics of the year.
After the #MeToo movement drew attention to issues of sexual
harassment in the workplace, the Equal Employment Opportunity Commission (EEOC)
signaled it would increase enforcement of sexual harassment claims. Data
released in early 2019 revealed a more than 50% increase in lawsuits alleging
sexual harassment and an increase of $22 million recovered for victims of
sexual harassment over the previous year.
A new law that took effect in January 2019 requires workers
in certain industries to undergo training on how to identify victims of human
trafficking. The law is designed to “encourage employers to take all reasonable
steps necessary to lead to the rescue of human trafficking victims and prevent
any kind of human trafficking in their establishments.”
At least four U.S. states evaluated new laws or updates to
existing laws regarding the collection and storage of biometric data. This
includes fingerprints, retina or iris scans, voiceprints or scans or records
for hand or face geometry. Depending on the state, laws can also include things
like keystroke and gait patterns as well as sleep, health and exercise data
that contain identifying information.
In an effort to fight modern slavery and human trafficking,
some nations, including the UK, France and Australia, have implemented supply
chain reporting laws that require larger companies to publish yearly statements
about the steps they take to minimize the risk of modern slavery infiltrating
their business, including supply changes. The goal is to get large companies
involved in eradicating modern slavery.
In 2019, the Wage and Hour Division of the U.S. Department
of Labor (DOL) changed the “white collar” overtime exemption regulations under
the Fair Labor Standards Act (FLSA). The rule regulates overtime and implements
exemptions from the overtime pay requirements for executive, administrative,
professional and certain other employees. The new rule raises the pay threshold
for exempt overtime workers to $35,588 per year or $684 per week.
In June 2019, Nevada became the first U.S. state to ban
employers from failing, or refusing, to hire a prospective employee because the
person “submitted to a screening test and the results of the screening test
indicate the presence of marijuana.”
In 2019, New York became the second state in the U.S. to ban
discrimination based on natural hairstyles. The law is intended to prohibit
dress codes or appearance policies that target people of color, particularly
black people, by banning traditional hairstyles like cornrows, braids, Bantu
knots, twists, fades, afros and dreadlocks or locs. California also passed a
similar law.
In 2019, New Jersey passed the New Jersey Wage Theft Act, one
of the strongest wage theft laws in the U.S. It requires employers to provide
current and newly hired employees with a written statement of their wage
rights. It also increases punishments for wage theft violations to include the
potential for jail time.
A number of new laws are set to take effect in California in
2020. The three biggest changes are the “ABC test,” which formally sets
criteria for who may be classified as an independent contractor; the California
Consumer Privacy Act of 2018, which is one of the toughest data privacy laws in
the U.S. and is similar to GDPR; and new sexual harassment and training
requirements.
According to the Association of Certified Fraud Examiners
(ACFE), companies lose an estimated 5% of their revenue annually due to fraud.
Fraud takes many shapes and forms, among them corporate fraud, consumer fraud,
tax fraud, identity theft and many others. The ACFE provides a list of tips for
fighting fraud.
Compliance Corner is a feature on the PeopleScout
website. Understanding the patchwork of labor laws across the world is
complicated, but it’s part of what we do best. If you have questions on the
compliance issue discussed in this article, please reach out to your
PeopleScout account team or contact us at marketing@peoplescout.com.
According to the Association
of Certified Fraud Examiners (ACFE), companies lose an estimated 5% of
their revenue annually due to fraud. Fraud takes many shapes and forms, among
them corporate fraud, consumer fraud, tax fraud, identity theft and many
others.
Occupational and white-collar fraud is an extremely costly problem for global businesses. The median loss caused by occupational fraud cases in a 2018 ACFE study was $118,000. The study finds that schemes can continue for months or even years before they are detected, with the average length spanning 18 months.
Each year, fraud fighters around the world use International Fraud Awareness Week as an opportunity to come together to raise fraud awareness in their communities and companies. In 2019, Fraud Awareness Week is November 17-23. This is the perfect time to start discussions among peers, coworkers and executives about how important fraud prevention is to society as a whole but also specifically in our companies.
During Fraud Awareness Week, participants are encouraged to engage in awareness-raising activities and initiatives in support of the anti-fraud movement. The ACFE’s suggested activities include hosting fraud awareness training for employees and/or the community, conducting employee surveys to assess levels of fraud awareness within their organization, posting articles on company websites and in newsletters and teaming up with local media to highlight the problem of fraud.
Here are a few best practices for fighting fraud at your
organization:
Talk about fraud prevention. Just speaking about it deters fraud.
Utilize corporate resources, such as running a credit check on all new customers and consulting with legal before entering into new contracts.
Verify worker hours to decrease the risk of forgery and wage and hour violations.
Take time to appreciate your staff. Talk about the Employee Assistance Programs (EAP) available through HR.
Do not ignore reports of suspicious activity. When staff members bring a problem to management’s attention, management owes it to the company to look into the matter.
Conduct site visits prior to sending workers to third-party worksites.
Take a look at the reports. Are you really looking at the data from your branches? Are you asking questions when something doesn’t make sense?
Compliance Corner is a feature from PeopleScout. Once a
month, we’ll be featuring a compliance issue that’s in the news or on our
minds. Understanding the patchwork of labor laws across the world is
complicated, but it’s part of what we do best. If you have questions on the
compliance issue discussed in this post, please reach out to your PeopleScout
account team or contact us at marketing@peoplescout.com.
A number of new laws in California are set to take effect in
2020. Employers in the state should ensure they are compliant by the start of
the new year. In this article, we will cover three of the biggest changes.
Because of the previous court decision, the provisions of AB5 were already law in California, but the new law formally ensures the test from the decision applies across the state.
The ABC test includes the following criteria to determine who may be classified as an independent contractor in cases involving minimum wage and overtime payments:
(A) “that the worker is free from the control and direction of the hirer in connection with the performance of the work, both under the contract for the performance of such work and in fact;
(B) that the worker performs work that is outside the usual course of the hiring entity’s business; and
(C) that the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.”
If the worker does not meet all three criteria of the ABC test, then that worker is presumed to be an employee.
The CCPA applies to most companies that collect the data of Californians, and it expands the definition of what is considered personal information, including behavioral and profiling data and professional and personal background data.
Under the new law, consumers in California are guaranteed
the following rights:
“To know what personal information is being collected about them”
“To know whether their personal information is sold or disclosed and to whom”
“To say no to the sale of personal information”
“To access their personal information”
“To equal service and price, even if they exercise their privacy rights”
The law requires any business that collects a California consumer’s personal information to disclose the categories and specific pieces of personal information collected and the purposes for which the information will be used, if the person requests.
If a person requests their information, the business must provide access to it in a format that allows the data to be transmitted to another entity within 45 days. A person may also opt-out of the sale of any of their information.
Businesses must also delete a consumer’s personal information if that person requests, unless the information is necessary for the business to complete a transaction, detect security incidents or protect against fraud, repair errors, protect free speech, engage in research, or comply with other California laws.
On October 11, 2019, California Gov. Gavin Newsom signed seven bills into law that augment and bolster the CCPA. The amendments provide some clarity and a partial but mostly temporary reprieve for those businesses that must comply with it. The most notable is AB 25, which creates a one-year exemption for employee data, meaning that the CCPA doesn’t apply to personal info collected from workers, job applicants or contractors. The California legislature will revisit this issue next year.
Sexual Harassment Training
Requirements
In 2018, California signed into law SB 1342, which required employers with 50 or more employees to provide at least two hours of prescribed training and education regarding sexual harassment, abusive conduct, and harassment based upon gender by January 2020. In 2019, SB 778 delayed most of those requirements until 2021.
In September 2018, California signed into law SB 1343 which required employers to provide at least two hours of sexual harassment training and education to supervisory employees, and one hour of training and education to non-supervisory employees. Under SB 1343, the training was to be completed by January 1, 2020, and within six months of the assumption of such supervisory/non-supervisory position. In August 2019, SB 778 was passed which delayed most of the requirements under SB 1343 to January 1, 2021. Employers now have more time to satisfy SB 1343 training and education requirements. Additionally, employers are required to provide the training to California employees once every two years.
On October 11, 2019 Gov. Newsom also signed SB 530, which extends to January 1, 2021, the deadline for employers to begin providing the sexual harassment training to seasonal and temporary workers hired to work for less than 6 months.
All other employees are required to obtain that training by the end of 2020.
Compliance Corner is a feature from PeopleScout. Once a
month, we’ll be featuring a compliance issue that’s in the news or on our
minds. Understanding the patchwork of labor laws across the world is
complicated, but it’s part of what we do best. If you have questions on the
compliance issue discussed in this post, please reach out to your PeopleScout
account team or contact us at marketing@peoplescout.com.
Earlier this year, New Jersey Governor Phil Murphy signed the New Jersey Wage Theft Act. The latest of its kind in the U.S., this law is also one of the strongest wage theft laws in the U.S. and requires employers to provide current and newly hired employees with a written statement of their wage rights.
In addition, the law:
Prohibits retaliation against employees who
complain about wage theft violations
Permits employees to sue employers for
violations, including attorney’s fees and damages
Increases punishments for violations, including
increased fees and the potential for jail time
Expands employer liability
Extends the current statute of limitations to
six years
Expands the New Jersey Department of Labor’s
(NJDOL) ability to investigate wage theft
Increases audits
Enables the NJDOL to issue stop-work orders or
direct agencies to suspend licenses held by the employer if the employer fails
to comply with court judgements and NJDDOL determinations
Provides joint liability with staffing agencies
Empowers the NJDOL to contract with community based
and legal services organizations
Enables the NJDOL to publicly post the names and
addresses of violating employers
Creates the crime “pattern of wage nonpayment”
that applies when an employer knowingly violates the law for a third time; it
is punishable by fines and jail time
Two other jurisdictions also passed similar legislation. The state of Minnesota passed the Minnesota Wage Theft Prevention Act in June, and the city of Minneapolis followed in July with a similar ordinance.
Employers in all relevant jurisdictions should ensure that they are in compliance with all aspects of the law and anticipate significant enforcement in the coming months and years.
Compliance Corner is a feature from PeopleScout. Once a
month, we’ll be featuring a compliance issue that’s in the news or on our
minds. Understanding the patchwork of labor laws across the world is
complicated, but it’s part of what we do best. If you have questions on the
compliance issue discussed in this post, please reach out to your PeopleScout
account team or contact us at marketing@peoplescout.com.
Earlier this year, New York became the second state in the U.S. to ban discrimination based on natural hairstyles.
The law amends both the state’s Human Right’s Law and the Dignity for All Students Act to update the definition of race to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.”
The law is intended to prohibit dress codes or appearance policies that target people of color, particularly black people, by banning traditional styles like cornrows, braids, Bantu knots, twists, fades, afros and dreadlocks or locs.
Earlier this year, the NYC Commission on Human Rights issued a legal enforcement guidance on discrimination of natural hairstyles that states, “while an employer can impose requirements around maintaining a work-appropriate appearance, they cannot enforce such policies in a discriminatory manner and/or target specific hair textures or hairstyles. Therefore, a grooming policy to maintain a ‘neat and orderly’ appearance that prohibits locs or cornrows is discriminatory against black people because it presumes that these hairstyles, which are commonly associated with Black people, are inherently messy or disorderly.”
Employers, especially those in New York in California, should review their dress and appearance policies to ensure they are in compliance.
Compliance Corner is a feature from
PeopleScout. Once a month, we’ll be featuring a compliance issue that’s in the
news or on our minds. Understanding the patchwork of labor laws across the
world is complicated, but it’s part of what we do best. If you have questions
on the compliance issue discussed in this post, please reach out to your
PeopleScout account team or contact us at marketing@peoplescout.com.
In June 2019, Nevada became the first U.S. state to ban employers from failing, or refusing, to hire a prospective employee because the person “submitted to a screening test and the results of the screening test indicate the presence of marijuana.”
Nevada Assembly Bill No. 132 takes effect January 1, 2020. The law does not apply to applicants for positions as firefighters, emergency medical technicians, operators of motor vehicles who are required to submit to drug tests or any other positions that “in the determination of the employer, could adversely affect the safety of others.” The law also does not apply if it conflicts with an employment contract or collective bargaining agreement, if the position is funded by a federal grant or “to the extent that [it] is inconsistent or otherwise in conflict with provisions of the federal law.”
The law also includes a provision stating that if an employer requires an employee to submit to a drug screening test within the first 30 days of employment, they must also allow the employee to submit to an additional test at the employee’s expense and “accept and give appropriate consideration” to the second test.
The New York City Council passed a similar bill earlier this year that would ban most employers from requiring job applicants to submit to drug tests for marijuana. That law goes into effect on May 10, 2020. It exempts many positions including law enforcement, construction, jobs that involve the supervision of children and medical patients, federal and state employees or contractors, and truck drivers and pilots.
Employers in Nevada and New York City should review and revise their drug testing policies and determine which positions could be exempt under either law.
At least 34 states and the District of Columbia have laws permitting at least some form of medical or recreational marijuana use, and some court rulings indicate that employers should proceed with caution when it comes to medical marijuana, as we discussed in a previous Compliance Corner article. With the complicated patchwork of laws, employers should work with attorneys to ensure their policies are compliant with all applicable laws.
Compliance Corner is a feature from PeopleScout. Once a
month, we’ll be featuring a compliance issue that’s in the news or on our
minds. Understanding the patchwork of labor laws across the world is
complicated, but it’s part of what we do best. If you have questions on the
compliance issue discussed in this post, please reach out to your PeopleScout
account team or contact us at marketing@peoplescout.com.
In March 2019, the Wage and Hour Division of the U.S. Department of Labor (DOL) proposed a change to the “white collar” overtime exemption regulations under the Fair Labor Standards Act (FLSA). The proposed rule regulates overtime pay and implements exemptions from the overtime pay requirements for executive, administrative, professional and certain other employees.
Currently, under federal law, non-exempt employees with a salary below $23,660 annually, or $455 per workweek, must be paid overtime if they work more than 40 hours in a workweek. This salary level was set in 2004. The DOL proposed rule raises that salary level to $35,308 per year or $679 per workweek.
DOL’s proposed rule also increases the total annual compensation requirement for “highly compensated employees” from the currently enforced $100,000 to $147,414 per year. This means that employees with a total annual compensation of $147,414 would qualify for the exemption under the test for highly compensated employees (HCE). Additionally, employers would be able to use nondiscretionary bonuses and incentive payments (paid at least annually) to satisfy up to 10% of that salary level.
The proposed change does not alter the requirement of an overtime rate of at least 1.5 times the regular rate of pay. Overtime would also continue to be applied on a seven-day workweek. However, the workweek does not have to match the calendar week.
The DOL’s proposed rule change also does not change overtime protections for police, firefighters, paramedics, nurses, laborers including non-management production-line employees and non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen and other construction workers. There are also no proposed changes to the job duties test, which defines several classes of workers potentially exempt from overtime based on job duties.
Despite the importance of the change to the white-collar overtime exemption, it may not require any adjustment to payroll practices for employers operating in jurisdictions with higher minimum salary thresholds imposed by state law. Employers in New York, for instance, cannot treat an employee as exempt from the overtime provisions of the New York Labor Law unless the employee meets the applicable duties test and is paid between $832-$1,125 per week, depending on the size of the employer and its location.
The rule is still a proposed change and not yet binding. After considering public comments, the Department of Labor can take feedback to issue a Final Rule, which could take months or years to take effect.
Compliance Corner is a
feature from PeopleScout. Once a month, we’ll be featuring a compliance issue
that’s in the news or on our minds. Understanding the patchwork of labor laws
across the world is complicated, but it’s part of what we do best. If you have
questions on the compliance issue discussed in this post, please reach out to
your PeopleScout account team or contact us at marketing@peoplescout.com.
