Quick Hits - November 22, 2023 - American Society of Employers - ASE Staff

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Quick Hits - November 22, 2023

NLRB and OSHA sign MOU – watch out employers:  On October 31, 2023, the National Labor Relations Board (NLRB) and the Occupational Safety and Health Administration (OSHA) announced that the agencies have executed a Memorandum of Understanding (MOU) “to strengthen the agencies’ partnership to promote safe and healthy workplaces through protecting worker voice.” The MOU seeks to enable the NLRB and OSHA to “closely collaborate” by more broadly sharing information, conducting cross-training, partnering on investigative efforts, and enforcing anti-retaliation provisions. The MOU points out that both the NLRA and OSHA protect employees’ right to complain to management about unsafe or unhealthy working conditions. The MOU goes on to prescribe protocols for the exchange of information between the agencies, as well as worker outreach, which include (1) OSHA providing potential victims of unfair labor practices with the NLRB’s contact information, (2) OSHA likewise advising such individuals who file time-barred Section 11(c) complaints that they may still file a charge with the NLRB for six months, and (3) NLRB sharing information with OSHA regarding workers who are currently or likely exposed to health or safety hazards, or to suspected violations of OSHA regulations, and encouraging those workers to contact OSHA promptly.  The MOU also states that the agencies can conduct joint investigations.  Source:  Littler11/3/23

What should you have in an AI policy:  Generative artificial intelligence use is pervasive, and human resources professionals can’t afford to ignore it.  Therefore, the following is recommended for the AI policy.  First, employers should ensure that human users are ultimately responsible for their work product.  Second, define who may use generative AI.  Is it some employees, all employees?  Third, possibly require prior approval.  Therefore, the employee is not acting in isolation.  Next, employers should make clear if there are certain tasks that would be considered off-limits for generative AI.  Also, employers may want to require that individuals using generative AI monitor its results consistently.  Employers should also include in their generative AI policies a reporting obligation if the technology creates any discriminatory content, or if a user discovers any discriminatory content in the tool.  Finally, employers should provide a generative AI point of contact for employees if they have questions or concerns.  Source:  HR Dive 11/3/23

Reprimand is not adverse action for EEO cause of action:  In Fuller v. McDonough, the employee claimed that she was reprimanded in retaliation for her sexual harassment complaint in violation of Title VII. In order to establish a retaliation claim, employees must show: (1) that they engaged in some protected activity (like filing a harassment complaint or participating in a harassment investigation), (2) that they suffered some adverse action, and (3) a causal link between the protected activity and the adverse action. An adverse action, however, must be material – “meaning more than a mere inconvenience or an alteration of job responsibilities.” However, as the Seventh Circuit stated, “a documented reprimand alone is not an adverse action absent some tangible job consequence” such as “ineligibility for job benefits like promotion, transfer to a favorable location, or an advantageous increase in responsibilities.”  In fact, turning the employee’s argument on its head, the Seventh Circuit asserted that, “job-related criticism can prompt an employee to improve her performance and thus lead to a new and more constructive employment relationship.” Thus, rather than an adverse action, a reprimand is arguably a positive opportunity.  Source: Shawe Rosenthal LLP 10/27/23

When doing a pre-employment medical exam, focus only on the employee:  In 2017, the EEOC filed a lawsuit in the U.S. District Court for the Northern District of Alabama, following an investigation by its Birmingham District office, against a national retailer alleging violations of GINA and the ADA. The EEOC alleged that the retailer, after making job offers to applicants to work at its Bessemer, Alabama, distribution center, then required those applicants to pass a post-offer medical exam. The EEOC alleged, however, that the retailer required its job candidates to disclose in that exam the past and present medical conditions of their family members, such as whether they had ever had cancer, diabetes, or heart disease. The EEOC sued the retailer on behalf of a class of 498 applicants who were required to divulge family medical history during the hiring process and on behalf of another class of qualified applicants whose job offers were rescinded based on their impairments. On Oct. 19, 2023, the EEOC settled, and the retailer agreed to pay $1 million and, among other non-monetary relief, bar their medical examiners from requesting family medical history from applicants during post-offer physicals. Therefore, monitor the questions asked so not to violate GINA requirements.  Source: Phelps Dunbar LLP 11/1/23

Do you have Zoom brain? Ever waved goodbye on Zoom and felt super awkward?  That might be because your brain doesn't process Zoom conversations the same way as face-to-face conversations, new research reveals, even though you are talking to a real person. The findings from the study at Yale University highlight how important in-person communication is to how we naturally interact with others. According to neuroscientist Joy Hirsch and her colleagues, most previous studies that used neuroimaging to record brain activity during social interactions involved individual people rather than pairs.  Here, the researchers compared how two people interacted with each other in real time. The participants were 28 healthy adults without vision impairments and included various ages, genders, and ethnicities.  Compared with Zoom interactions, face-to-face discussions coincided with greater increases in brain signaling in a critical area called the dorsal-parietal region. Specifically, when people talked to each other face-to-face, brain wave activity showed theta oscillations, which are linked to better face processing. Activity in brain regions associated with sensory processing and spatial perception also indicated more contrast observed in real-life faces, and eye tracking showed longer eye contact periods.  Even with today's high-resolution cameras, webcams make eye contact difficult. Hirsh concludes: "Zoom appears to be an impoverished social communication system relative to in-person conditions."  Source:  Science Alert 11/3/23


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