Employment and Privacy Law Update – February 2023

It’s hard to believe the first month of 2023 is over, but yet, here we are….. off and running! As you embark on your individual, department and corporate goal setting and strategy discussions, here are a few timely HR and privacy topics I suggest you have in focus:

Artificial Intelligence/Chat GPT

Every day we are hearing more about the growing uses of AI and/or Chat GPT. “Nearly 30% of U.S. professionals say they have already used AI in their work.”[1] Personally, I would be shocked if this percentage were not much higher.  While it would be foolish for employers not to explore how such innovative tools can improve efficiency, I would also strongly caution organizations to be aware of the legal risks of using AI. Case in point, in their draft EEOC 2023 to 2027 Draft Strategic Plan, our friends at the EEOC have listed “the use of automated systems, including artificial intelligence or machine learning” as one of the top subject matter priorities of focus[2]. The key concern noted by the EEOC is that such AI tools used in recruiting and pre-hire screening may intentionally exclude or adversely impact groups of employees in protected categories (race, gender, age, religion, sexual orientation, etc.).   

Aside from the potential discrimination risks, companies would also be well advised from a culture and employee engagement standpoint to get ahead of employee fear on how the use of AI may put them out of a job. My advice, if your company is using AI, let employees know how it will/won’t be used. 

For more on the use of AI in employment, and other focus areas of the EEOC in their draft Strategic Plan, see the below articles from the Harvard Business Review and the law firm of Gibson Dunn which offer interesting perspectives.  

https://hbr.org/2022/12/chatgpt-and-how-ai-disrupts-industries

https://www.gibsondunn.com/EEOCDraftSEPTop10

Pregnancy Discrimination

Pregnancy Workers Fairness Act (PWFA)

Providing Urgent Material Protections for Nursing Mothers Act (PUMP for Nursing Mothers Act)

Both of these federal laws were enacted at the end of 2022 and provide additional protections for pregnant employees. I am providing a brief summary of each Act based on a detailed and very helpful article provided by the law firm of Jackson Lewis.[3]

PWFA (becomes effective June 27, 2023)

• Applies to employers with at least 15 employees;
• PWFA in essence covers a gap that had developed in recent court rulings that pregnancy, in isolation, was not a disability entitled to reasonable accommodation under ADA;
• Requires employers to provide ADA like “reasonable accommodation” to employees or applicants with known temporary limitations on their ability to perform essential job functions based on a physical or mental condition related to childbirth, pregnancy or related conditions; What is considered a reasonable accommodation is balanced against an employer’s “undue hardship analysis”;
• Employers cannot require an employee to take paid or unpaid leave of absence if another reasonable accommodation exists.

PUMP for Nursing Mothers Act (effective December 29, 2022 with exception of new legal recourse rights)

• Applies to employers with 50 or more employees (smaller employers may cite undue hardship if compliance results in significant difficulty or expense – which is fact specific determination);
• Expands current FLSA employer obligation* to provide exempt employees (non-overtime eligible) with break time to express breast milk for employee’s nursing child for 1 year after birth;

* The 2010 Break Time for Nursing Mothers Act passed as part of ACA only covered non-exempt/overtime eligible employees. The PUMP Act also extends the 2010 requirement for employers to provide a private location, other than a bathroom, that is shielded from view and free from intrusion.

• Provides more direct legal recourse for employees whose employers violate the break time and/or private space requirements and if the employer does not remedy the violation within ten (10) days of employee notice (effective within 120 days of law being signed – estimated to be April 28, 2023)

CCPA, CPRA and other US State “GDPR-like” Data Privacy Laws

This topic could justify a newsletter article all by itself. As a result, I am providing links below to 2 comprehensive articles provided by Bloomberg Law[4] and the Gunderson Dettmer law firm[5] for those that want to dig deeper. 

From the perspective of my typical reader – the HR or Legal professional, a few predictions based on my reading of the tea leaves:

• State US Privacy laws (“GDPR-like” laws) such as the California Consumer Privacy Act (CCPA) and the now effective/soon to be enforced California Privacy Rights Act (CPRA) are going to be the “rule” rather than the “exception” in the years ahead;
• Outside of California – 4 states (Colorado, Connecticut, Utah and Virginia) now have active data privacy laws and 4 other states (Michigan, NJ, Ohio and Pennsylvania) have similar bills in Committee;
• Most of these state data privacy laws currently focus their enforcement activities on businesses that generate revenues tied to “consumer” activity (e.g. sales-oriented businesses or businesses that monetize the personal data they hold);
• While all of the active and pending state laws (excluding California) still exclude/exempt from their scope businesses that collect personal information solely for use in the employment context, I would be shocked if more states don’t move towards the California approach – which will continue to dilute the “employment context” exemption.

I hope you all found this information helpful. Stay tuned for more monthly updates.

[1] Cerullo, Megan. “AI ChatGPT is helping CEO’s think. Will it also take your job?”, CBS News Money Watch, 24 January 2023, www.cbsnews.com/news/chatgpt-chatbot-artificial-intelligence-job-replacement/ (Accessed 31 January 2023).

[2] Draft Strategic Enforcement Plan, 88 FR 1379 (January 10, 2023)(Comment period closes February 9, 2023) 

[3] Lynett, Joseph, Weber, Katherine, and Cano, Catherine. “Complying with the new Federal Pregnant Workers Fairness Act, PUMP for Nursing Mothers Act”, Jackson Lewis, 4 January 2023,  www.jacksonlewis.com/publication/complying-new-federal-pregnant-workers-fairness-act-pump-nursing-mothers-act/ (Accessed 31 January 2023).J –

[4] “CCPA vs CPRA: What’s the Difference?”, Bloomberg Law, 23 January 2023, www.pro.bloomberglaw.com/brief/the-far-reaching-implications-of-the-california-consumer-privacy-act-ccpa/ (Accessed 31 January 2023).

[5] “Start Preparing for New State Privacy Law That Take Effect in 2023”, Gunderson Dettmer Law Firm, 21 December 2022, https://www.gunder.com/news/start-preparing-for-new-state-privacy-laws-that-take-effect-in-2023/ (Accessed 31 January 2023)